IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50756

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

RODOLFO RIVERO GARCIA, JR.,

Defendant−Appellant.

Appeal from the United States District Court

for the Western District of Texas

No. 4:17-CR-11-1

Before SMITH, WIENER, and WILLETT, Circuit Judges.

PER CURIAM:*

Rodolfo Rivero Garcia, Jr., entered a conditional guilty plea to aiding and 

 

* 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

Fifth Circuit

FILED

November 28, 2018

Lyle W. Cayce

Clerk

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abetting the possession with intent to distribute 100 kilograms or more, but 

less than 1,000 kilograms, of marihuana. He appeals the denial of his motion 

to suppress the fruits of a warrantless stop of his vehicle by Border Patrol 

agents in Balmorhea, Texas, contending that there was no reasonable suspicion for the stop. Finding no error, we affirm.

We review the district court’s legal conclusions, including whether there 

was reasonable suspicion, de novo. See United States v. Cervantes, 797 F.3d 

326, 328 (5th Cir. 2015). The evidence presented at a suppression hearing is 

viewed in the light most favorable to the prevailing party, here the government. See id. Factual findings are reviewed for clear error. See id.

In determining whether reasonable suspicion exists in the context of roving Border Patrol stops, we examine the totality of the circumstances and 

weigh the factors in United States v. Brignoni-Ponce, 422 U.S. 873, 884−85 

(1975). Cervantes, 797 F.3d at 329. The factors include (1) the area’s proximity 

to the border; (2) the characteristics of the area; (3) usual traffic patterns; 

(4) the agents’ experience in detecting illegal activity; (5) the driver’s behavior; 

(6) characteristics of the vehicle; (7) recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and 

behavior. Id.

In this case, although the important proximity-to-the-border factor is not 

present, given that the stop occurred between 50 and 100 miles from the 

Mexico-United States border, a careful examination of the remaining factors 

supports the determination that the agents had a reasonable suspicion of illegal activity sufficient to make the traffic stop. See id. at 330. As articulated 

by the district court, the testimony showed that the characteristics of the area, 

the agents’ experience, and information about recent illegal alien and narcotics 

smuggling in the area contributed to reasonable suspicion. Indeed, the agents 

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who stopped Garcia’s vehicle had a combined Border Patrol experience of 

30 years and, on the night in question, had been briefed about a significant 

increase in activity in the Marfa and Alpine areas to the south. See United 

States v. Ramirez, 839 F.3d 437, 440 (5th Cir. 2016) (stating that experience is 

entitled to “significant weight”). In addition, the agents had been informed by 

their supervisor, after running a search of the Treasury Enforcement Communications System database, that both registered owners of the vehicle had 

“a lot” of alerts for narcotics smuggling.

Also weighing in favor of reasonable suspicion were the usual traffic patterns, the driver’s behavior, and the vehicle’s characteristics. Although Garcia 

contends his behavior was consistent with safe driving habits, he ignores the 

agent’s testimony that he tapped his brakes and reduced his speed even though 

the merge onto the interstate was gradual, and further, that he failed to take 

the most direct route to Tyler, Texas (where the vehicle was registered). See 

United States v. Zapata-Ibarra, 212 F.3d 877, 883−84 (5th Cir. 2000). “Factors 

that ordinarily constitute innocent behavior may provide a composite picture 

sufficient to raise reasonable suspicion in the minds of experienced officers.” 

United States v. Jacquinot, 258 F.3d 423, 427−28 (5th Cir. 2001). Finally, the 

vehicle’s darkly tinted windows contributed to reasonable suspicion because 

they prevented the agents from allaying their other suspicions. See United 

States v. Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001). 

Considering the totality of these circumstances and the Brignoni-Ponce

factors collectively, there was reasonable suspicion to stop Garcia’s vehicle. 

The judgment is AFFIRMED.

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