This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be

cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

January 29, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

TEN TH C I RC U I T

UNITED STA TES OF AM ER IC A,

Plaintiff-Appellee,

v. No. 06-2043

LEONA RD O ROD RIG U EZR EYES,

De f endant-Appe llant.

(D .C . No. CR-05-1196 RB)

(D. New M exico)

ORDER AND JUDGM E NT

*

Before BR ISCOE, EBEL, and TYM KOVIC H, Circuit Judg es.

After examining the briefs and appellate record, this panel has

determined unanimously to honor the parties’ request for a decision on the

brie fs without ora l a rgum ent. Se e Fed. R. App. P. 34(f); 10th Cir. R.

34.1(G ). The c a se is, the re fore , ord e red submitted without ora l a rg ument. 

Defendant Leonardo Rodriguez-Reyes (Rodriguez-Reyes) entered a
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conditional guilty plea to possession with intent to distribute one hundred

kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1), 21

U.S.C. § 841(b)(1)(B), and 18 U.S.C. § 2. The only issue presented for

review is whether the d istrict cou rt erred in denying Rod rigu ez-Reyes’

motion to suppress physical evidence and statements in ruling that there was

reasonable suspicion that Rodriguez-Reyes was involved in criminal

activity sufficient to justify an investigatory stop by a roving Border Patrol

agent. We exe rc is e jurisdic tion pursuant to 28 U.S.C. § 1291 and a ffirm. 

I. Factual Background

The following facts are based upon the testimony of the two United

States Border Patrol Agents, Jos e Aguilar (Agent Aguilar) and Jesus Flores

(Agent Flore s), who testified a t the he a ring on Rodrigue z -Reye s’ motion to

suppress. These are also essentially the same factual findings made by the

distric t court in its ord e r d enying Rodrigue z -Reye s’ motion to suppre ss. 

Rodriguez-Reyes does not contest any of these factual findings as being

clearly erroneous and there appears to be no reason to discount the

testimony of e ither officer.

On February 24, 2005, between 7:00 p.m. and 9:00 p.m., Agent

Aguilar received information about a sensor alert four miles west of

Columbus, New M exico. The alert indicated that someone, probably in a

vehicle, crossed the United States/M exico border at that location. Agent
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Aguilar, who was parked two to three miles east of Columbus when he

received the sensor alert information, decided to investigate and he headed

west on Highway 9 past Columbus. At its clos est point, Highway 9, a twolane paved road that runs parallel to the United States border with M exico,

is about one mile from the border, and about three to four miles from the

borde r gene ra lly. During daylight hours, most of the tra ffic o n Highway 9 is

f a rm and ranch tra ffic and the re a re f ew tourists on this ro ad a fte r d a rk . 

The Borde r Pa trol apprehends a lien and drug smuggle rs on Highway 9

a lmost da ily. 

Approximately one mile west of Columbus, Agent Aguilar saw

headlights from a vehicle approaching him on Highway 9. Based on the

timing of the activation of the sensor and his encounter with this vehicle,

Agent Aguilar b e lieved tha t the vehicle like ly ac tiva ted the senso r. He did

not encounter any other vehicles coming from the area where the sensor was

loc a ted. Agent Aguila r pulled to the side of the road and pa rked a t a fortyfive-degree angle so that he could get a better look at the vehicle as it drove

by. Twenty to thirty s econds later, the vehicle was clos e enough for Agent

Aguila r to identify it a s a J e ep Grand Che ro ke e with Arizona lic ense pla te s. 

He a lso s aw tha t the re wa s fre sh, we t mud on the re a r o f the vehic le . 

From this, and given that it had rained intermittently over the previous

few days, Agent Aguilar surmis ed that the mud indicated that the Cherokee
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had been driven off-road rec en tly. He a lso testified that there were

numerous unimproved roads coming from the Mexican border to Highway 9,

which become very muddy in rainy weather. Within the few days preceding

February 24, 2005, the day in question, the Border Patrol had apprehended

between five an d ten “drive-throug hs,” that is, ind ividuals driving across

the United States/M exican border at places other than a port of entry. Agent

Aguilar also knew that drug and alien smugglers preferred SUV-type

vehicles, as they could carry a fair amount of cargo, and also had “off-road”

capabilities. The Cherokee’s Arizona license plates also indicated that the

vehicle was not local and was not part of the usual traffic pattern on

Highway 9 a t tha t time of night. 

As the Che roke e pa ss ed Agent Aguilar, he proc e eded to follow it

eastbound on Highway 9. Agent Aguilar noticed that the Cherokee was

traveling at about forty-five miles per hour, which was ten miles below the

posted speed limit. While following the Cherokee, Agent Aguilar contacted

the El Paso border s ector and asked them to run a “72-hour lane check,” that

is, to determine whether this particular vehicle had passed through a port of

entry within the preceding seventy-two hours, and to check the registration

to determine whether the Cherokee had been reported as stolen. Agent

Aguilar w a s told tha t the Che roke e wa s registe red to a woman who lived in

M esa , Arizo na and that it had not crossed the b orde r throu gh a p ort of entry
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within the la st s eventy-two hours. 

When the Cherokee arrived at the intersection of Highway 9 and

Highway 11, it stopped and waited somewhat longer than Agent Aguilar

would have generally expected. Highway 11 is a two-lane paved highway

running north and south from the port of entry in Columbus to Deming, New

M exico. Agent Aguilar could not see into the Cherokee, but could see that

it was riding low in the rear, as if it were carrying extra passengers or heavy

cargo. Thereafter, the Cherokee turned north on Highway 11. Agent

Aguilar continued to follow the Cherokee through Columbus. The Cherokee

wa s n ow trave ling about fifteen miles pe r hour be low the posted sp e ed limit

of thirty-five miles p er hour. Agen t Aguilar testified that this was v ery

unusu a l, be c ause drive rs u su a lly exc e ed the sp e ed limit and drive forty to

forty-five miles per hour on this portion of the highway. He testified further

that he suspected that the driver was becoming nervous that he was being

followed, although he also testified that he was in an unmarked vehicle.

Agent Aguilar then activated his emergency equipment and stopped

the Cheroke e on Highway 11. He app roached the d river, Rod rigu ez-Reyes,

and asked him his citizenship. Rodriguez-Reyes responded in broken

English tha t he wa s an Ame ric an c itiz en. Agent Aguilar a sk ed him first in

English, then in Spanish, whe the r the re wa s someone e ls e in the vehic le . 

Rodriguez-Reyes responded affirmatively and gestured towards the back of
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the vehicle . Agent Aguilar a sk ed Rodrigue z -Reye s in Spanish if he could

look in the back of the vehicle and Rodriguez-Reyes consented. Upon

opening the rear door of the Cherokee, Agent Aguilar saw bundles

consistent with the packaging of marijuana. No one else was in the

Cherokee. Agent Aguilar took Rodriguez-Reyes into custody and radioed

anothe r Bord e r Pa trol Agent, Agent Flore s, for a ssistanc e . 

Agent Aguila r r e ad Rodrigue z -Reye s his M iranda rights in Spanish. 

Rodriguez-Reyes stated that he understood these rights and answered Agent

Aguilar’s q ue stions. He sta ted tha t he had inten ded to drive the Che roke e to

a re sidentia l a re a just we st of Highw ay 11 and le ave it in a pa rking lot. He

an ticipa ted re ce iving $3,000 fo r his effo rts. Law en fo rcemen t office rs

seized approximately 370 pounds of marijuana following their search of the

Cherokee.

II. Ana lysis

Standards governing our review of a district court's ruling on a motion

to suppress are well established. United States v. Cantu, 87 F.3d 1118, 1120

(10th Cir. 1996). We conside r the evidenc e in the light most f avorable to

the preva iling pa rty, he re the gove rnment, and a c c ept the distric t court's

factual findings unless clearly erroneous. Id.; United States v. Anderson,

114 F.3d 1059, 1063 (10th Cir. 1997). But, the “ultimate determination of

re a so nablen e ss unde r the Fourth Amendment is a que stion of law review able
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de n ovo.” United States v . M cKissick , 204 F.3d 1282, 1296 (10 th Cir.

2000). The defendant bears the burden of establishing that the challenged

stop violated the Fourth Amendment. United States v. Long, 176 F.3d 1304,

1307 (1 0th Cir. 1999). 

Rodrigue z -Reye s e ss entially a rgue s tha t Agent Aguilar v iolated his

Fourth Amendment right to be free from unreasonable search and seizure,

becaus e Agent Aguilar only had a “hunch,” and not a reasonable suspicion,

tha t Rodrigue z -Reye s wa s smuggling a liens or d ru gs when he wa s stopped. 

Contrary to Rodriguez-Reyes’ view of the evidence, Agent Aguilar had

reasonable articulable suspicion to stop Rodriguez-Reyes’ vehicle.

Consistent with the Fo urth Amendment’s prohibition against

unreasonable searches and seizures, Border Patrol agents on roving patrol

a re pe rmitted to “ stop vehicle s o nly if they a re awa re of sp e c ific a rticu lab le

f a c ts, toge the r with ra tiona l inf e renc e s from those f a c ts, tha t re a so nably

wa rr ant suspic ion” tha t the oc cupants a re involved in c rimina l a c tivity. 

Cantu , 87 F.3 d a t 112 1 (q uo tin g Un ited Sta te s v. Brig no ni-Ponc e , 422 U.S .

873, 884 (1975)). Reasonable suspicion does “not rise to the level required

for probable caus e, and it falls considerably short of satisfying a

p rep on de ran c e of th e ev id en c e stan da rd .” Un ited Sta te s v. Arv izu , 534 U.S .

266, 274 (2002). Rather, “reasonable suspicion represents a ‘minimum level

of objective justification.’” United States v. M endez, 118 F.3d 1426, 1431
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(1 0th Cir. 1997) (quoting United Sta te s v. Sokolow, 490 U.S. 1, 7 (1 989)). 

In determining whether there is reasonable suspicion to stop a car in the

border area, officers may consider any number of factors, including:

(1) [the ] cha ra c teristics of the a re a in which the vehicle is

encountered; (2) the proximity of the area to the border; (3) the

usual patterns of traffic on the particular road; (4) the previous

experience of the agent with alien traffic; (5) information about

rec en t illeg al borde r crossings in the are a; (6) the driver’s

behavior, including any obvious attempts to evade officers; (7)

aspects of the vehicle, such as a station wagon with concealed

compa rtments; and (8) the appe a ranc e tha t the vehicle is he avily

loaded.

United States v. M onsisvais, 907 F.2d 987, 989 (10th Cir. 1990) (citing

Brignoni-Ponce , 422 U.S. at 88 4-85 ).

When evaluating an officer’s decision to stop a vehicle, a court may

not engage in a “divide-and-conquer analysis” by evaluating and rejecting

each factor in isolation. Arvizu, 534 U.S. at 274; United States v.

Gand ara-Salinas, 327 F.3d 1127, 1130 (10th Cir. 2003 ). This is because

factors that, by themselves, may be “consistent with innocent travel” may

collectively amount to reasonable suspicion. Arvizu, 534 U.S. at 274-75

(quoting Sokolow, 490 U.S. at 9). Rather, “the totality of the circumstances

– the whole p icture – must be tak en into a c count. Ba sed upon tha t whole

picture the de taining office rs must have a pa rticularized and objec tive ba sis

for suspecting the particular person stopped of criminal activity.” United

States v. Cortez, 449 U.S. 411, 417-18 (1981). “In all situations the officer
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is entitled to assess the facts in light of his experience in detecting illegal

entry and smuggling.” Brignoni-Ponce, 422 U.S. at 885.

The distric t co urt found tha t Agent Aguilar w a s awa re of sp e c ific

articulable facts, which, when taken with ration al inferences from these

f a c ts, indica ted Rodrigue z -Reye s’ v ehicle might have be en involved in

criminal conduct. In fact, the district court found the majority of the

Brignoni-Ponce fa ctors sa tisfied in this ca se. Spec ifica lly, the d istrict court

fo und that the f ollowing fa cts, taken togethe r and given Agen t Aguilar’s

knowled ge of loc a l inhabitants and the vehicle s they drove , gave rise to

reasonable suspicion to stop Rod rigu ez-Reyes:

(1) Rodriguez-Reyes’[Cherokee], becaus e of its location along

[Highway] 9, could have caused the sensor alert that triggered

shortly beforehand; (2) the [Cherokee] had a significant amount

of mud on its fenders and bumper that was indicative, given the

rec en t rain, of a v eh icle tha t had rec en tly trav eled alon g a d irt

road; (3) many dirt roads ru n from the M exican Borde r to

[Highway] 9 We st of Columbus, New M exico ; (4) the vehicle

wa s trave ling we ll be low the posted sp e ed limit and appe a red to

be riding low; (5) the [Cheroke e] had Arizon a license plates;

and (6) non-local traffic is highly unusual along that portion of

[Highway] 9, pa rticu larly a t tha t time of night.

Pleadings, Vol. 1, Doc. 26, p. 6.

Here, the Brignoni-Ponce factors support the conclusion that Agent

Aguilar’s stop of the Che roke e wa s b a sed on a re a so nable and a rticu lab le

suspicion that its occupant was engaging in criminal activity. Agent

Aguilar first s aw the Cherokee in a remote area within a few miles of the
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M exican borde r sh ortly a fter a senso r indica ted tha t a v ehicle illega lly

en tered the U nited States. The Cherokee was traveling from the a rea where

the s ensor h ad be en tripped, and the re we re no othe r v ehic le s in the a re a . 

The Che roke e wa s muddy, sugge sting it had re c ently be en off-road, which is

consistent with the theory that it had just driven off-road to cross into the

United States illegally. M oreove r, the Cheroke e had out-of-state plates,

which Agent Aguilar testified was unusual given that usually traffic at that

time of night wa s a lmost entire ly loc a l. 

Bolstering these facts is the additional fact that Agent Aguilar knew

that there had been between five and ten illegal vehicles crossing in the

same area within the preceding few days and that the Border Patrol

apprehended smugglers o f both a liens and drugs o n an a lmost da ily ba sis in

that area. M oreover, the make of Rodriguez-Reyes’ vehicle was consistent

with a vehicle well-suited for transporting drugs, becaus e it had ample cargo

spa c e and could be driven off-road from the borde r to Highw ay 9. Tw o

other f ac tors heavily favor the re aso nab lene ss of A gen t Aguilar’s

inve stiga tory stop. First, Rodrigue z -Reye s wa s d riving on the roads in

question much more slowly than one might generally expect, even though

Agent Aguilar was following him in an unmarked car. Second, the rear of

the Che roke e appe a red he avily loaded, which is c lea rly a furthe r a rticu lab le

f a c t consistent with the theory tha t Rodrigue z -R eye s wa s transporting som e
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form of contraband. 

Althoug h there may be an inn ocen t exp lanation for each o ne o f these

facts, as Rodriguez-Reyes hims elf argues, we must consider these facts from

th e van tag e poin t of a re a so nab le law en fo rc ement off ic e r. Arv izu , 534 U.S .

at 277-78. M oreover, we must defer to Agent Aguilar’s ability, as an

experienced law enforcement officer, to distinguish between innocent and

su sp icious a c ts. Se e United State s v . Williams, 271 F.3d 1262, 1268 (10th

Cir. 2001). 

Agent Aguilar’s expe rienc e with the a re a , when coupled with the f a c ts

presented, gav e rise to reasonab le suspicion to stop Rod rigu ez-Reyes.

Rodriguez-Reyes’ car was the first vehicle Agent Aguilar saw after the

sensor was tripped, Rodriguez-Reyes had out-of-state plates, but he was

driving at a time and place where the only legal traffic is usually local, he

wa s d riving ve ry slowly, an d, given the f a c t his vehicle wa s riding low, it

appe a red he wa s transp orting contraband. Conside ring a ll the se f a c ts in

light of Agent Aguilar’s knowledge and experience, we conclude that the

district cou rt did not err in denying the motion to sup press.

A FFIRMED.

Entered fo r the Court

M ary Beck Briscoe

Circuit Judge