* This order is not binding precedent, except underthe doctrines of law of

the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders; nevertheless, an order may be c ited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate reco rd, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### December 6, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-2119

v. (D. of N.M.) GABRIEL GUILLEN-ZAPATA,

Defendant-Appellant. (D.C. No. CR-03-210-JP)

ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **

Defendant-Appellant Gabriel Guillen-Zapata, a Mexic an citizen without immigration documents, was apprehended in New Mexic o near the border between the United States and Mexico driving a vehi cle transporting 1,650 pounds of marijuana. Guillen-Zapata pled guilty in federal district court in the District of New Mexico to three counts: (1) conspir acy to possess marijuana with-2-

the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)(A), (b)(1)(A) and 846; (2) possession with intent to distribute marij uana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); and (3) being found in the United States after having been deported as an alien convicted of an aggravate d felony in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). Guille n-Zapata appeals the denial of his motion to suppress statements and physical evid ence. He argues that the district court erred in finding the Border Patrol a gents possessed reasonable suspicion to stop his vehicle and contends that all evidence related to the stop should have been suppressed as fruit of the poisono us tree. We take jurisdiction pursuant to 28 U.S.C. § 1291 a nd AFFIRM. I. Background The Birchfield area is a five to seven mile stretch of desert in southern New Mexico, which runs along the Mexican border to the south and New Mexico Highway 9 to the north. Throughout the Birchfield area, Highway 9 parallels the border at a distance of 600 yards at its closest po int and one mile at its farthest point. There are no ports of entry within the Birc hfield area, and the nearest ports are approximately forty miles in either direction. There are no businesses or structures in the area and no paved roads except Hi ghway 9. A number of illegal entries had been reported in the area in the three weeks prior to the traffic stop at-3-

issue, and at least ten drug seizures had been cond ucted in the area within the three preceding years. On December 19, 2002, at approximately 7:30 p.m., avehicle sensor was triggered in the Birchfield area. The sensor had b een placed between Highway 9 and the Mexican border at a point where the distanc e between the highway and border was approximately 600 yards. There was a di rt road running north and south that crossed Highway 9 at that point. The se nsor was designed to detect vehicles driving off-road between the border and Hi ghway 9, but it was possible to avoid the sensor by staying on the dirt road. Approximately an hour before the sensor’s activation, Border Patrol agents had drive n along the sensor area parallel to Highway 9 and marked out a path with their own t ire tracks. That way, if another vehicle crossed their tracks afterward, the y would be able to tell. When this sensor was activated, Border Patrol AgentJuan Francisco Jimenez and his partner were parked about a mile we st of the sensor’s location. Officer Jimenez and his partner waited two or three minutes after hearing the alarm so they would not “spook” the vehicles that m ay have activated the sensor. Then, they moved up closer to the highway in order to see whether any vehicles had driven past. They observed the taillights of avehicle that had just passed their position heading westbound on Highway 9. Age nt Jimenez pulled onto the highway, radioed the information to other Border Patrol agents, and headed east-4-

toward the sensor. As he did so, he saw the headli ghts of a second westbound vehicle approaching. Agent Jimenez identified the second vehicle, which was following closely behind the first, as “some type o f utility truck.” Tr. at 17. The two vehicles were headed away from the sensor, and the direction and time frame of both vehicles was consistent with having activat ed the sensor. Agent Jimenez arrived at the sensor, having seen no other vehicles on the road between his initial point of observation and t he sensor location. He saw fresh vehicle tracks of two or more vehicles leadin g from the sensor’s location up to Highway 9. The tracks indicated that the vehicl es had turned west onto the highway. After he radioed this information to othe r Border Patrol Agents, Agent Kevin McCrary, who was approximately four and half miles west of the sensor area, radioed back that he saw two “utility trucks like the kind the phone company uses” headed west approximately three car lengths apart. Tr. at 37. At the time these two vehicles passed his location, Agent McCrary estimated they were traveling between sixty and sixty-five miles per ho ur. About seven miles west of the sensor, Border Patrol Agent Richard Duggan learned of the sensor’s activation and the subseque nt reports of fellow agents and headed east toward the sensor. When he passed two trucks that matched the descriptions provided by the other agents, Agent Du ggan made a U-turn and headed west behind them. As soon as he did so, the lead truck sped up-5-

considerably and distanced itself from the trailing truck. Agent Duggan thought this was suspicious, because, when he had passed th em, they were traveling at the same speed approximately 100 yards apart. He pulle d alongside the trailing vehicle and saw the driver, Guillen-Zapata, wearing a hard hat. Agent Duggan thought this was suspicious, because he had worked in construction and knew that hard hats were extremely uncomfortable and usually only worn while at a job site. At that point, Agent Duggan slowed down and stoppedthe vehicle. As he approached the driver’s window, he smelled creosote bush, which indicated that the utility truck had very recently been driven off -road. Agent Duggan knew that the only way to activate the sensor was to drive of f-road. Agent Duggan asked the driver, Guillan-Zapata, what his citizenship wa s, and he responded, “Mexico.” Tr. at 47. When asked if he had any immigration do cuments with him, GuillenZapata answered that he did not. Agent Duggan smel led marijuana coming from the truck cab and saw wrapped packages behind the f ront seat, which looked to him like packages of marijuana. When asked what he was carrying, GuillenZapata responded, “Nothing.” Tr. at 48. Then he c hanged his answer to say he did not know. Tr. at 48. Agent Duggan opened one of the side compartments of the truck and, upon observing more bundles, he radi oed ahead to tell other agents to stop the lead truck. The agents discovered 1,65 0 pounds of marijuana in-6-

Guillen-Zapata’s truck and subsequently discovered 1,600 pounds of marijuana in the lead truck. The lead truck, which was driven by Erasmo Ruiz-Sot o, was pursued by Border Patrol Agent David Joseph Blea. Ruiz-Soto at first slowed down and tried to waive the officer past him. When Agent Blea att empted to pull him over, he sped up and abruptly turned off-road, crashing thro ugh a fence and heading south toward the Mexican border, which was less than a mi le away. When his truck became stuck, he attempted to flee on foot but was apprehended. Co-defendant Ruiz-Soto filed a motion to suppress p hysical evidence and statements relating to his arrest, and Defendant-Ap pellant Guillen-Zapata later joined that motion. When it was denied, Guillen-Zapata pled guilty but then appealed the denial of suppression. He argues thatthe Border Patrol agents lacked reasonable suspicion to stop his vehicle andtherefore violated his Fourth Amendment rights. II. Analysis The Fourth Amendment requires a finding of reasonab le suspicion that criminal activity may be afoot before conducting ro ving Border Patrol stops. United States v. Gandara-Salinas , 327 F.3d 1127, 1129 (10th Cir. 2003) (citing United States v. Arvizu , 534 U.S. 266, 273 (2002)). “Although an officer’ s reliance on a mere hunch is insufficient to justify a stop, the likelihood of-7-

criminal activity need not rise to the level requir ed for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Id. (quoting Arvizu , 534 U.S. at 274). Under this standard, Border Patrol agents may stop vehicles “if they are aware of specific articu lable facts, together with rational inferences from those facts, that reasonably warrant suspicion” of criminal activity. Id. (quoting United States v. Monsisvais , 907 F.2d 987, 989–90 (10th Cir. 1990) (quoting United States v. Brignoni-Ponce , 422 U.S. 873, 884 (1975))). “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Arvizu , 534 U.S. at 277. The following factors are relevant in determining w hether a law enforcement officer has reasonable suspicion to con duct an immigration stop: (1) characteristics of the area in which the vehicl e is encountered; (2) proximity of the area to the border; (3) usual patterns of tr affic on the particular road; (4) previous experience of the agent with alien tra ffic; (5) information about recent illegal border crossings in the area; (6) th e driver’s behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; (8) the appearan ce that the vehicle was heavily loaded. Gandara-Salinas , 327 F.3d at 1129–30 (quoting Monsisvais , 907 F.2d at 990 (citing factors listed in Brignoni-Ponce , 422 U.S. at 884–85)).-8-

In evaluating these factors, courts may not employ a “divide-and-conquer” approach by evaluating and rejecting each factor in isolation. Arvizu , 534 U.S. at 277. Instead, the ultimate determination of reason able suspicion depends upon the totality of the circumstances. Gandara-Salinas , 327 F.3d at 1130. When making their determination, law enforcement officer s may rely on their own experience and specialized training, and courts mus t defer to their ability to make inferences from and deductions about the cumulative information that may elude an untrained person. See Arvizu , 534 U.S. at 273; United States v. De La CruzTapia , 162 F.3d at 1277–78. The ultimate determination of reasonableness under the Fourth Amendment is a conclusion of law that we review de novo. See De La Cruz-Tapia , 162 F.3d at 1277. The evidence to support that conclusion, however, must be viewed in the light most favorable to the prevailing party, and w e must accept the district court’s findings of fact unless they are clearly er roneous. Id. at 1277–78. On the facts above, the district court found that t he Border Patrol possessed reasonable suspicion to stop Guillen-Zapata’s vehic le. We are convinced that the totality of the circumstances supports the districtcourt’s ruling. Conceding only one factor, Guillen-Zapata attacks the court’s find ings on each of the other seven factors. As explained below, we find his arguments unpersuasive.-9-

(1) As to the first factor (characteristics of the area in which the vehicle is encountered), Guillen-Zapata takes issue with the court’s descrip tion of the area. The court described the Birchfield area as a remote and desolate desert. GuillenZapata argues that this was insufficient to supporta conclusion that this factor weighed against him. However, it clearly must be a nalyzed in context with the remainder of the court’s discussion and analysis. Specifically, the judge found that (I) the area was very near the Mexican border; (ii) no designated ports of entry were nearby; (iii) it had a history of illega l entries and drug seizures; (iv) after the sensor was triggered, Border Patrol observed only two vehicles within the relevant vicinity—those driven by Guillen-Zapat a and Ruiz-Soto. These findings together demonstrate that the area lent it self to illegal border crossings and that, at least on the night in question, it pro duced a very narrow pool of suspects. We are satisfied this factor weighs in t he government’s favor. (2) Guillen-Zapata concedes that the second factor (proximity to the border) weighs against him. (3) As to the third factor (usual patterns of traff ic on the particular road), Guillen-Zapata claims that the evidence in the reco rd showed only specific flow and patterns of traffic during the time period at i ssue, as opposed to the general tendencies of traffic in the area. Agent Jimenez t estified that he was monitoring Highway 9 on the evening in question and that only two vehicles (those driven by-10-

Guillen-Zapata and Ruiz-Soto) passed within proximi ty to the sensor at the time it was activated. He also testified that ranchers in the area sometimes used the dirt road leading onto Highway 9 but that use of the roa d would not trigger the sensor. This testimony weighs against Guillen-Zapata, and n o reason exists to believe generalized evidence would have been more helpful t han specific evidence. Thus, absent any argument that the factor should have poi nted in the opposite direction, we see no reason to reach a different conclusion th an the district court reached on this factor. (4)–(5) The fourth factor (previous experience of the agent with alien traffic) and fifth factor (information about recentillegal border crossings in the area), similarly weigh against Guillen-Zapata. The agents testified to their involvement with several operations in prior years and to familiarity with illegal drug runs across the border in the recent past. Gu illen-Zapata argues that the agents should have compared prior arrests to the on e at issue to show their specific knowledge of and experience with particula r fact scenarios. However, their testimony of experience in the same field wit hin the same geographic area is sufficient, so long as their testimony was credible

. Compare United States v. Gandara-Salinas , 327 F.3d at 1131 (basing its conclusion on similarly generalized statements that the agent had experience in “narcot ics seizures” and that the highway was a “common route for smuggling undocumented immigrants and-11-

illegal drugs” across the Mexican border). We gene rally defer to the district court on credibility determinations, and the record does not suggest any basis for concluding its decision was clearly erroneous. Guillen-Zapata also argues that the agents’ experie nce was not extensive enough. Agent Duggan, who made the traffic stop, h ad been a Border Patrol agent in this sector for approximately five years a nd had helped conduct approximately six drug seizures within the Birchfie ld area alone. Three of those involved Highway 9. Agent Jimenez, who provided Ag ent Duggan with information based on his own observations at and ne ar the sensor, had w orked in this Border Patrol sector for approximately six anda half years and, during that time, had been involved in several drug seizures on Highway 9. As the United States Supreme Court has made clear, courts should be hesitant to second-guess law enforcement officers’ ability to detect suspici ous conduct when they possess experience and specialized training in that area. See Arvizu , 534 U.S. at 273; see also De La Cruz-Tapia , 162 F.3d at 1277–78. We disagree with the defend ant’s suggestion that an agent must be involved in hundre ds or thousands of operations before we will defer to his expertise and agree wit h the district court that this record provides sufficient basis for this factor to weigh in favor of the government.1 On this point, it should be noted that the written order was drafted

pursuant to the judge’s oral statements, which were given in response to specific oral arguments made by Ruiz-Soto’s attorney.

2 The issue of probable cause to search the vehicle, based upon the scent of marijuana and view of wrapped packages in the cab, is separate from the issue of reasonable suspicion to stop the car in the first p lace. See Brignoni-Ponce , 422 U.S. at 881–82. Only the latter is challenged in t his appeal. -12- (6) As to the sixth factor (the driver’s behavior, including attempts to evade officers), Guillen-Zapata correctly points out that , when discussing driver behavior, the court referred only to the truck driv en by Ruiz-Soto in its explanation of this factor. 1 However, the judge noted in his fact section that when Agent Duggan stopped Guillen-Zapata’s vehicle, he knew that (i) there was a sensor activation; (ii) vehicle tracks indicated westbound traffic; (iii) Border Patrol agents were monitoring two utility trucks he aded westbound on Highway 9; (iv) his law enforcement presence caused the two ve hicles, which were traveling close together, to greatly increase the distance be tween them; and (v) GuillenZapata was wearing a hard hat although he clearly w as not on a construction site. Agent Duggan’s experience in the Border Patrol made him suspicious of the vehicles’ sudden distancing, and his experience in the construction industry made him suspicious of someone who was wearing a hard hat when not at work. Given the testimony presented, the district court’s fact findings are not clearly

erroneous. 2-13-

(7) The seventh factor (aspects of the vehicle, suc h as a station wagon with concealed compartments), is no help for Guillen-Zap ata. He argues the court’s finding that the trucks were “utility vehicles” was insufficient to support the factor relating to covered compartments, because th e Border Patrol agents did not specifically say they were suspicious of the vehicl es based on their potential to hold contraband. We need not state the obvious on every point; Guillen-Zapata’s vehicle falls squarely within this category. (8) Finally, as to the eighth factor (the appearanc e that the vehicle was heavily loaded), Guillen-Zapata does not put forth any argument to explain why it should weigh in either direction, given that these were utility vehicles that were built for heavy loads and thus unlikely to show the weight they were carrying. In addition, even if this factor were considered to we igh in favor of Guillen-Zapata, the overwhelming evidence presented by the remainin g factors is sufficient to support reasonable suspicion.
III. Conclusion In light of the above-stated reasons, we agree with the district court that the totality of the circumstances supports a finding of reasonable suspicion by the Border Patrol and conclude that Guillen-Zapata’s Fo urth Amendment rights were not violated. We therefore AFFIRM the decision to deny Defendant-Appellant’s motion to suppress statements and physical evidence

.-14- Entered for the Court Timothy M. Tymkovich Circuit Judge