### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 po u n d s of

ma rij u a n a in the auxiliary diesel tank of the vehicle. After the district court denied Mark’s m o t i o n t o suppress, Mark entered a conditional guilty plea, preserving his right to appeal the denial of his motio n . B ecause we conclude U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June11 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50385 Document: 00511882275 Page: 1 Date Filed: 06/11/2012No. 11-50385

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 o f Ruidosa, Texas, towards Presidio, Texas. Presidio is located on the Rio Grande river, and FM 17 0 r o u ghly parallels and runs within one mile of the border between Texas and Mexico. Mark’s truck had Texas license plates and was outfitted with a n auxiliary diesel tank and tool box in the pickup bed. Undercover agents followed the truck for more than seventy-two hours. During the surveillance, th e truck stopped at a restaurant. While the truck was parked, agents saw that its tires had been washed recently wi th muddy water. However, the agents knew that no rain had fallen in that area for

some time. The agents also obs e rv e d th e t ru ck 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 wer e p a rt 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 s t op, 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

2 Case: 11-50385 Document: 00511882275 Page: 2 Date Filed: 06/11/2012No. 11-50385

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 th e D i s ru p t 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 tha t 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 in t o 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 p aved, two-lane highway without shoulders starting in Candelaria, Texas , ru n ning parallel to the Rio Grande River, thro u gh Ru i dosa, eventually arriving in Presidio. Ag e nt Cruz testified that FM 170 was well known for alien and

n arcotics smuggling and that very few people lived between Ruidosa an d Presidio. That region was dry, with little vegetation, and con s i s t e d 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 b e t ween one and five miles from the United

3 Case: 11-50385 Document: 00511882275 Page: 3 Date Filed: 06/11/2012No. 11-50385

States–Mexico border, as it wa s h eading northbound on Highway 67 towards Marfa, Texas. Mark consented to a sear c h o f 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 arrest e d a n d charged with one count of aiding and abetting possession with intent to distribute ma rij u a na 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 den i a l of his motion to suppress. The district court sentenced Mark to imprisonment for a term o f 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 Th e Fourth Amendment to the United States Constitution guarantee s

“ [t] he right of the people to be secure in their persons, houses, papers, a n d 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 w a rrant a reasonable suspicion that

U .S

. C ON ST

. ame nd. IV. 1
Brend li n v. Cal if

orni a , 551 U. S. 249, 255 (200 7) (c itin g De la wa re v. Prous e , 440 U. S. 2 648, 653 ( 1979) ). 4 Case: 11-50385 Document: 00511882275 Page: 4 Date Filed: 06/11/2012No. 11-50385

the vehicle is involved in illegal activities

. . . . ” We have previously set forth 3 pertinent factors in determining whether reasonable suspicion existed: Under th e Supreme Court’s pronouncement in United States v. Brignoni- P

o n ce , 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 char acteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) th e n u mber of passengers and their appearance and behavior. 4 Although these fa c t o r s w e r e 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 encompa s s vehicle stops for anysuspected 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 insufficien t 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

Uni ted Sta tes v. Cha vez- Chav ez , 205 F.3d145 , 147 (5t h Cir

. 2000)

. 3
Uni ted States v. Soto , 649 F.3d 406, 409 (5t h Cir. 2011) (c itat ions om i t t e d) (c itin g 4 Uni ted States v. Jac quin ot , 25 8 F .3d 423, 427 (5t h Cir. 2001) (p er curiam)) ; ac cor d Uni ted States v. Br ignoni -Pon ce , 422 U. S. 873 , 884- 85 ( 1975)

.

Uni ted Sta te s v . In o cen ci o , 40 F.3d 716, 722 (5t h Cir. 1994) (c itin g Uni ted States v. 5 Cortez , 449 U. S. 411 , 421- 22 ( 1981) ).
Uni ted States v. Ar vizu , 534 U. S. 266, 273 (200 2) (citi ng Cortez , 449 U. S. at 417-18)

. 6
Soto , 649 F.3dat409

. 7
Ar vizu , 534 U. S. at 274 (c itat ions om itt ed) (int erna l quot atio n mar ks om itt ed) (c itin g 8 Uni ted Sta tes v. Sok olo w , 490 U. S. 1, 7 (198 9); Ter ry v. Ohio , 392 U. S. 1, 27 (196 8))

. 5 Case: 11-50385 Document: 00511882275 Page: 5 Date Filed: 06/11/2012No. 11-50385

“[I]n assess i n g wh e th er an agent had reasonable suspicion, we look to the ‘collective knowledge’ of all agents and officers.” 9 In reviewing the denial of Mark’s moti o n t o suppress, we review the district c o u rt’s factual findings for clear error and its conclusions of law de

novo. The district court’s determination that reasonable suspicion existed is 1 0

a c o n c l u s i o n o f law. We view the evidence in the light most favorable to the 1 1 Government, the party that prevailed in the district court. 1 2 The question of whether there was reasonable suspicion to s t o p Mark’s truck is admittedly a close call in this case. No one fact in the record before us, standing alone, would establish reasonable s u s p i c i on. However, when the totality of the circumstances is considered, the agents had reasonable suspicion. We first recognize that some factors w eigh 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 r e c o r d regarding the experience of Agent Ramos or the Disrupt Unit. Regarding Mark’s behavior, there is no evidence that he appeared nervous

wh i l e under surveillance or when being followed and then stopped by Agent s Ramos and Cruz. The fact that Mark washed only the undercarriage and tires of his truck, standing alone, would not give rise t o s u s picion of illegal activity.

Uni ted Sta tes v. H

ern andez , 477 F.3d210 , 215 n.13 ( 5th Cir. 200 7). 9
Uni ted States v. Oc hoa , 667 F.3d 643, 64 9 ( 5 t h C i r . 2012) (c itin g Uni ted States v. 1 0 Scroggins , 599 F.3d433 , 440 (5t h Cir

. 2010) ).

Uni ted Sta tes v. Ro driguez , 564 F.3d735 , 740 (5th Cir

. 2009)

. 1 1
Uni ted Sta tes v. Ca vazo s , 668 F.3d190 , 193 (5t h Cir

. 2012)

. 1 2 6 Case: 11-50385 Document: 00511882275 Page: 6 Date Filed: 06/11/2012No. 11-50385

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 p r o xi m i ty 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, 1 3 “[i]t is well established that a road’s reputation as a smuggling route adds to the

reasonab l e n e s s of the agents’ suspicion.” However, we have also explained that 1 4 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 1 5

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 r e gi o n s 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 wi th a n auxiliary diesel 1 6 tank and a toolbox caused the Disrupt Unit to begin surveillance of the pickup

as it traveled on a w e l l

- known drug-trafficking route. Cruz indicated in his testimony that trucks with auxiliary diesel tanks were not uncommon in the

area because there we r e s o f e w fuel stations. However, before the stop was executed, Cruz ascertained that this truck was registered in Arlington, Texas,

Uni ted States v. Soto , 649 F.3d 406, 409 (c itin g Uni ted States v. Orozco , 191 F.3d 578, 1 3 581 (5t h Cir

. 1999) ).

Uni ted Sta tes v. A lda co , 168 F.3d148 , 151- 52 ( 5th Cir. 199 9). 1 4
Uni ted Sta tes v. Ra ngel -Por til lo , 586 F.3d376 , 380 & n.3 (5t h Cir

. 2009)

. 1 5
Soto , 649 F.3dat409

. 1 6 7 Case: 11-50385 Document: 00511882275 Page: 7 Date Filed: 06/11/2012No. 11-50385

and the agents k n e w th at M a rk had spent the night in a Presidio hotel. This indicated that the truck may not have been outfitted for u s e i n th e sparsely populated border area. These facts also indicated that the truck was probably not in use on one of the neighboring ra nches, 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 cros s i n g s i n 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 un d ercarriage of the truck, but not the rest of the vehicle, removing the muddy marks. Viewin g th e p articular circumstances of this case in their totality, the facts of which the agents were aware, together with the rational inferences from those f a c t s , warranted a reasonable suspicion that Mark’s vehicle was involved i n illegal activity. Some of the factors may be susceptible of innocent explanation, and some are more probative th an 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 r easonable suspicion 1 7 exists . . . need not rule out the possibility of innocent conduct.” 1 8 * * * For the foregoing reasons, we AFFIRM the district court’s judgment.

See Uni ted Sta tes v. A rv iz u , 534 U. S. 266 , 277- 78 ( 2002)

. 1 7
Id. at277(cit ing Illi nois v. W ardlo w , 527 U. S. 119 , 125 (200 0))

. 1 8 8 Case: 11-50385 Document: 00511882275 Page: 8 Date Filed: 06/11/2012