IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50385

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

PHILIP LAWRENCE MARK,

Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:10-CR-359-1

Before REAVLEY, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

Suspecting that the pickup truck Philip Lawrence Mark was driving was

transporting illegal aliens or drugs, Border Patrol agents conducted a vehicular

stop. Mark consented to a search, and agents discovered 820.35 pounds of

marijuana in the auxiliary diesel tank of the vehicle. After the district court

denied Mark’s motion to suppress, Mark entered a conditional guilty plea,

preserving his right to appeal the denial of his motion. Because we conclude

United States Court of Appeals

Fifth Circuit

F I L E D

June 11, 2012

Lyle W. Cayce

Clerk

 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.

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that the agents had reasonable suspicion that the vehicle was involved in illegal

activity, we affirm the conviction.

I

Mark owned a white Dodge Ram pickup truck. That truck first came to

the attention of undercover law enforcement authorities while it was being

driven southeast on farm-to-market road 170 (FM 170) from the direction of

Ruidosa, Texas, towards Presidio, Texas. Presidio is located on the Rio Grande

river, and FM 170 roughly parallels and runs within one mile of the border

between Texas and Mexico. Mark’s truck had Texas license plates and was

outfitted with an auxiliary diesel tank and tool box in the pickup bed. 

Undercover agents followed the truck for more than seventy-two hours.

During the surveillance, the truck stopped at a restaurant. While the

truck was parked, agents saw that its tires had been washed recently with

muddy water. However, the agents knew that no rain had fallen in that area for

some time. The agents also observed the truck as it was driven to a car wash

and the driver washed only the tires and undercarriage, removing the mud. The

truck was then driven to a hotel, and Mark lodged in that hotel overnight.

Early the following morning, the undercover agents, who were part of

what is known as the Disrupt Unit, requested uniformed Border Patrol Agents

Alfonso Ramos and Rafael Cruz to stop the truck in Presidio, Texas. In making

this request for a vehicular stop, the Disrupt Unit relayed to the uniformed

agents the facts that they had observed while conducting surveillance of the

truck.

The Disrupt Unit provided a description of the truck, which matched the

truck stopped by Agents Ramos and Cruz. Agent Cruz testified that, at the time

of the stop, he was aware that within the preceding six months other arrests had

been made in nearby regions after marijuana was found within auxiliary diesel

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tanks. However, he also testified that he did not consider trucks with auxiliary

diesel tanks to be uncommon in the area because there were so few fuel stations.

Cruz testified that members of the Disrupt Unit had told him that they

had observed that the truck’s tires had recently been washed with muddy water. 

Cruz confirmed at the suppression hearing that it had not rained for several

weeks and that he interpreted the Disrupt Unit’s description of the tires to

indicate that the truck may have recently crossed the nearby Rio Grande River. 

Cruz testified that he was personally familiar with illegal river crossings in the

area—some of which were located on FM 170 west of Presidio, the direction from

which the Disrupt Unit first observed the truck traveling—and he also testified

that he had seen signs that people making illegal river crossings would cross the

river and then wash their vehicles on the United States side of the border using

branches, rags, and their bare hands.

At the time of the suppression hearing, Agent Cruz had been working for

over a year and a half in Presidio as a Border Patrol Agent. His duties involved

detecting illegal entries into the United States, and his area of operation

stretched from Ruidosa to Presidio. He was familiar with FM 170, the road on

which the Disrupt Unit first noticed Mark’s truck. He knew it to be a paved,

two-lane highway without shoulders starting in Candelaria, Texas, running

parallel to the Rio Grande River, through Ruidosa, eventually arriving in

Presidio. Agent Cruz testified that FM 170 was well known for alien and

narcotics smuggling and that very few people lived between Ruidosa and

Presidio. That region was dry, with little vegetation, and consisted largely of

ranch land.

When Ramos and Cruz located the white pickup truck, but before stopping

it, they ran a check on the Texas license plates and learned that the vehicle was

registered in Arlington, Texas. They then activated their patrol vehicle’s lights

and stopped the truck between one and five miles from the United

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States–Mexico border, as it was heading northbound on Highway 67 towards

Marfa, Texas. Mark consented to a search of the vehicle, which led to the

discovery of 820.35 pounds of marijuana hidden inside the auxiliary diesel tank. 

Cruz had made thirty to forty vehicle stops in the past, but none of those stops

had resulted in the discovery of drugs or illegal aliens.

Mark was arrested and charged with one count of aiding and abetting

possession with intent to distribute marijuana in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. He moved to suppress evidence discovered as a

result of the stop of his truck, alleging that the evidence was obtained from an

illegal search and seizure. After a hearing, the district court denied the motion. 

The district court held that “reasonable suspicion existed to conduct a vehicular

stop of the white Dodge Ram pickup” based on the totality of the circumstances. 

After the denial of his motion to suppress, Mark entered a conditional guilty

plea, which preserved his right to appeal the denial of his motion to suppress. 

The district court sentenced Mark to imprisonment for a term of forty-eight

months to be followed by five years of supervised release, and he was ordered to

pay the United States a special assessment of $100. This appeal followed.

II

The Fourth Amendment to the United States Constitution guarantees

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures,” and “[t]he law is settled 1

that in Fourth Amendment terms a traffic stop entails a seizure of the driver.”2

“To temporarily detain a vehicle for investigatory purposes, a Border Patrol

agent on roving patrol must be aware of ‘specific articulable facts’ together with

rational inferences from those facts, that warrant a reasonable suspicion that

 U.S. CONST. amend. IV. 1

Brendlin v. California, 551 U.S. 249, 255 (2007) (citing Delaware v. Prouse, 440 U.S. 2

648, 653 (1979)).

4

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the vehicle is involved in illegal activities . . . .” We have previously set forth 3

pertinent factors in determining whether reasonable suspicion existed:

Under the Supreme Court’s pronouncement in United States v.

Brignoni-Ponce, factors that may be considered in determining

reasonable suspicion include: (1) the area’s proximity to the border;

(2) characteristics of the area; (3) usual traffic patterns; (4) the

agents’ experience in detecting illegal activity; (5) behavior of the

driver; (6) particular aspects or characteristics of the vehicle; (7)

information about recent illegal trafficking of aliens or narcotics in

the area; and (8) the number of passengers and their appearance

and behavior.4

Although these factors were first identified in the context of a case involving

suspected alien smuggling, we have recognized that the Supreme Court, in

United States v. Cortez, expanded Brignoni-Ponce “to encompass vehicle stops

for any suspected criminal activity.”5

We “must look at the ‘totality of the circumstances’ . . . to see whether the

detaining officer [had] a ‘particularized and objective basis’ for suspecting legal

wrongdoing.” No single factor is determinative. “Although an officer’s reliance 6 7

on a mere ‘hunch’ is insufficient to justify a stop, the likelihood of criminal

activity need not rise to the level required for probable cause, and it falls

considerably short of satisfying a preponderance of the evidence standard.”8

United States v. Chavez-Chavez, 205 F.3d 145, 147 (5th Cir. 2000).

3

United States v. Soto, 649 F.3d 406, 409 (5th Cir. 2011) (citations omitted) (citing

4

United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (per curiam)); accord United

States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975).

United States v. Inocencio, 40 F.3d 716, 722 (5th Cir. 1994) (citing United States v. 5

Cortez, 449 U.S. 411, 421-22 (1981)).

United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Cortez, 449 U.S. at 417-18).

6

Soto, 649 F.3d at 409.

7

Arvizu, 534 U.S. at 274 (citations omitted) (internal quotation marks omitted) (citing

8

United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 27 (1968)).

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“[I]n assessing whether an agent had reasonable suspicion, we look to the

‘collective knowledge’ of all agents and officers.”9

In reviewing the denial of Mark’s motion to suppress, we review the

district court’s factual findings for clear error and its conclusions of law de

novo. The district court’s determination that reasonable suspicion existed is 10

a conclusion of law. We view the evidence in the light most favorable to the 11

Government, the party that prevailed in the district court.12

The question of whether there was reasonable suspicion to stop Mark’s

truck is admittedly a close call in this case. No one fact in the record before us,

standing alone, would establish reasonable suspicion. However, when the

totality of the circumstances is considered, the agents had reasonable suspicion. 

We first recognize that some factors weigh against the existence of

reasonable suspicion. Agent Cruz lacked experience in actually detecting illegal

transportation of drugs or aliens by a vehicle. Although he had made thirty to

forty stops during his year and a half as a Border Patrol Agent in Presidio, none

of those stops resulted in the discovery of drugs or illegal aliens. There is

nothing in the record regarding the experience of Agent Ramos or the Disrupt

Unit. Regarding Mark’s behavior, there is no evidence that he appeared nervous

while under surveillance or when being followed and then stopped by Agents

Ramos and Cruz. The fact that Mark washed only the undercarriage and tires

of his truck, standing alone, would not give rise to suspicion of illegal activity. 

United States v. Hernandez, 477 F.3d 210, 215 n.13 (5th Cir. 2007). 9

United States v. Ochoa, 667 F.3d 643, 649 (5th Cir. 2012) (citing United States v. 10

Scroggins, 599 F.3d 433, 440 (5th Cir. 2010)).

United States v. Rodriguez, 564 F.3d 735, 740 (5th Cir. 2009).

11

United States v. Cavazos, 668 F.3d 190, 193 (5th Cir. 2012).

12

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But when considered with other evidence, the removal of the muddy markings

on the truck becomes more suspicious.

Mark was observed and stopped in close proximity to the United

States–Mexico border in an area the district court found to be “known for drug

and illegal alien smuggling.” “We have explained that proximity to the border

can be a ‘paramount factor’ in assessing reasonable suspicion.” Additionally, 13

“[i]t is well established that a road’s reputation as a smuggling route adds to the

reasonableness ofthe agents’ suspicion.” However, we have also explained that 14

proximity to the border and the fact that the stop was conducted in a high crime

area do not constitute reasonable suspicion on their own; additional factors must

support the conclusion that there was reasonable suspicion. When considered 15

as a whole and in context, the facts known to the agents at the time of the stop

supported reasonable suspicion. 

Cruz knew that arrests had been made in nearby regions within the six

months preceding the stop in which marijuana was found within auxiliary diesel

tanks. This “information about recent illegal trafficking of . . . narcotics in the

area” and the fact that Mark’s truck was configured with an auxiliary diesel 16

tank and a toolbox caused the Disrupt Unit to begin surveillance of the pickup

as it traveled on a well-known drug-trafficking route. Cruz indicated in his

testimony that trucks with auxiliary diesel tanks were not uncommon in the

area because there were so few fuel stations. However, before the stop was

executed, Cruz ascertained that this truck was registered in Arlington, Texas,

United States v. Soto, 649 F.3d 406, 409 (citing United States v. Orozco, 191 F.3d 578, 13

581 (5th Cir. 1999)).

United States v. Aldaco, 168 F.3d 148, 151-52 (5th Cir. 1999). 14

United States v. Rangel-Portillo, 586 F.3d 376, 380 & n.3 (5th Cir. 2009).

15

Soto, 649 F.3d at 409.

16

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and the agents knew that Mark had spent the night in a Presidio hotel. This

indicated that the truck may not have been outfitted for use in the sparsely

populated border area. These facts also indicated that the truck was probably

not in use on one of the neighboring ranches, where it could have encountered

mud in the course of ranch-related use. The tires on Mark’s truck had recently

been washed with muddy water, and based on Cruz’s knowledge that it had not

rained for several weeks and his familiarity with illegal river crossings in the

area in which the Disrupt Unit first sighted Mark’s truck, Cruz interpreted the

Disrupt Unit’s description to indicate that the truck may have recently crossed

the Rio Grande River. Mark had washed the tires and undercarriage of the

truck, but not the rest of the vehicle, removing the muddy marks.

Viewing the particular circumstances of this case in their totality, the facts

of which the agents were aware, together with the rational inferences from those

facts, warranted a reasonable suspicion that Mark’s vehicle was involved in

illegal activity. Some of the factors may be susceptible of innocent explanation,

and some are more probative than others, but taken together, we believe they

are sufficient to make the agents’ stop of Mark “reasonable within the meaning

of the Fourth Amendment.” “A determination that reasonable suspicion 17

exists . . . need not rule out the possibility of innocent conduct.”18

* * *

For the foregoing reasons, we AFFIRM the district court’s judgment.

See United States v. Arvizu, 534 U.S. 266, 277-78 (2002).

17

Id. at 277 (citing Illinois v. Wardlow, 527 U.S. 119, 125 (2000)).

18

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