United States Court of Appeals

Fifth Circuit

FILED

August 8, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-50490

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EDUARDO HERNANDEZ,

Defendant-Appellant.

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m 05-50493

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN CARLOS DIAZ,

Defendant-Appellant.

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2

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m 05-50494

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JONATHAN SANCHEZ,

Defendant-Appellant.

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m 05-50495

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GERARDO RESENDIZ,

Defendant-Appellant.

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3

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m 05-50496

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CRISTIAN FELIPE QUEVEDO,

Defendant-Appellant.

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Appeals from the United States District Court

for the Western District of Texas

m 2:03-CR-253-2

_____________________________________

Before SMITH, GARZA, and CLEMENT, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Eduardo Hernandez, Juan Diaz, Jonathan

Sanchez, Gerardo Resendiz, andCristian Quevado appeal the partial denial of their motion

to suppress, on Fourth Amendment grounds,

evidence obtained pursuant to the Border Patrol’sroving stop oftheir vehicles on suspicion

of illegal smuggling activity. We affirm.

I.

On the morning of March 5, 2003, each of

the appellants, as well astwo other defendants,

Michael Santoyo and Luis Alvarez, were

driving on highways in the vicinity of Dryden,

Texas. The vehicles operated by the

defendants were pick-up trucks, extended-cab

trucks, and SUV’s.

Border Patrol and Bureau of Immigration

and Customs Enforcement (“BICE”) agents

stopped each of the vehicles within fifty miles

of the Mexican border based on suspicious ac-

* 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determined that this opinion should not be published and is not precedent except under the limited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.
4

tivity they had observed.1 Between about 4:20

and 5:20 a.m. the agents watched the vehicles,

apparently operating in tandem, drive first toward and then away from the border. Because

(1) the number of vehicles was highly unusual

for the normally-deserted roadsin the area, especially given the time of day, (2) the vehicles

followed one another (approximately one mile

apart), making all of the same turns, (3) each

of the vehicles had a CB radio antenna (a

known characteristic of smuggling convoys),

(4) some of the drivers appeared to be spying

on or attempting to distract the attention of

law enforcement, and (5) the roads on which

the vehicles were traveling were notorious

drug- and alien-smuggling routes, the agents

eventually pulled each vehicle over and questioned each driver regarding his travel plans.

Afterlearning the defendants’identities, listening to their imprecise descriptions of their

travel plans, detecting a pungent body odor in

one ofthe vehicles, and discovering CBradios,

multiple cell phones, a tarp, and water jugs in

two of the vehicles,2the agents became

convinced that the defendants were part of the

Nolasco-Resendiz Organization, an

alien-smuggling operation based in Houston

and known for employing tactics similar to

what the agents had observed.

Because of this suspicion, the agents, who

already had placed Resendiz and Sanchez in

patrol cars, took the keys from the remaining

defendants and placed them on the hood of

each car while defendantsremained in their vehicles. The agents then decided to take Resendiz and Sanchez to the Sanderson Border

Patrol Station and, returning their keys, told

the remaining defendantsto follow themthere.

At the station, defendants were handcuffed to

their steering wheels. The agents led them

inside the station one at a time for further

questioning. 

During questioning, Santoyo told the

agents that he and the others were in the process of smuggling aliens that morning. Santoyo also gave the agentsthe possible location

of illegal aliens that he and the other defendants had dropped off on the side of the highway to avoid being caught by law enforcement. A large group of aliens was subsequently found in the area Santoyo had specified. 

Defendants were indicted for transporting

illegal aliens in violation of 8 U.S.C. § 1324

and aiding and abetting the same in violation

of 18 U.S.C. § 2. Santoyo pleaded guilty of

the first count of the three-count indictment,

charging him with aiding and abetting the illegal transportation of aliens in violation of

§§ 1324(a)(1)(a)(ii) and(a)(2). The remaining

1 The officers who observed the relevant activities and were involved in stopping thevehicles were

BICE special agent Adam Wilson, BICE criminal

investigator Armando Montes, Jr., and Border

Patrol agents Kelly Helms and Santiago Gonzalez.

At the time, Wilson had five and one-half years of

experience as a BICE agent, preceded by three

years of experience as a Border Patrol agent.

Montes had been a criminal investigator withBICE

for seven years, and before that was a Border

Patrol agent for six years. Gonzalez had been

employed by Border Patrol for fifteen years.

Helms had three years of experience as a Border

Patrol agent.

2 The validity of the initial search of the two

relevant vehicles, separate fromthe larger question

(continued...)

2

(...continued)

of whether the stop of each vehicle was supported

by a reasonable suspicion of criminal activity, is

not an issue in this case.
5

defendants, Hernandez, Diaz, Sanchez,Resendiz, Quevado, and Alvarez, filed a motion to

suppress all evidence against them, arguing

that the initial investigatory stops of their vehicles were not supported by a reasonable suspicion of criminal activity and that their continued detention constituted unlawful arrests

without probable cause. The motion sought to

suppress even the statements of Santoyo, who

neither joined the motion nor otherwise challenged his stop or arrest.

The district court granted in part and denied in part the motion to suppress. The court

ruled that each initial stop was supported by

reasonable suspicion and that all information

discovered during those stops was therefore

admissible. The court also held that the subsequent detentions of the defendants, starting

when Resendiz and Sanchez were placed in

patrol cars and the agents confiscated the car

keys of the remaining defendants, were unlawful arrests unsupported by probable cause.

The court ruled, however, that the movants

did not have standing to contest the admissibility of Santoyo’s post-arrest statements because his arrest did not violate their Fourth

Amendment rights. 

Hernandez, Diaz, Sanchez, Resendiz, and

Quevado subsequently entered conditional

guilty pleas, pending the outcome of their appeal of any suppression issues. These defendants now appeal the court’sruling on the validity of the initial investigatory stops and on

their standing to challenge the admissibility of

Santoyo’s statements. The government does

not appeal the court’sruling regarding the unlawfulness of the continued detentions.

II.

“We use a two-tiered standard of review

for appeals from the denial of a motion to suppress: Factual findings are accepted unless

clearly erroneous, and the district court’s ultimate conclusion as to the constitutionality of

law enforcement action is reviewed de novo.”

United States v. Jackson, 390 F.3d 393, 396

(5th Cir. 2004), vacated, 544 U.S. 917 (vacating judgment in light of Booker), judgment

reinstated, 138 F. App’x 632 (5th Cir.), cert.

denied, 126 S. Ct. 317 (2005).

“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall

short of traditional arrest.” United States v.

Arvizu, 534 U.S. 266, 273 (2002). “A United

States Border Patrol agent’stemporary detention of an occupant of a vehicle for investigatory purposes while on roving patrol is constitutional if, at a minimum, the agent reasonably

suspects that an occupant of the vehicles is involved in illegal activity.” United States v.

Guerrero-Barajas, 240 F.3d 428, 432 (5th

Cir. 2001).

We agree with the district court that the initialstop of each defendant was supported by a

reasonable suspicion of criminal activity. In

United States v. Brignoni-Ponce, 422 U.S.

873, 884-85 (1975), the Court explained that

[a]ny number of factors may be taken into

account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics ofthe area in which they encounter

a vehicle. Its proximity to the border, the

usual patterns of traffic on the particular

road, and previous experience with alien

traffic are all relevant. They also may considerinformationabout recent illegal border

crossingsin the area. The driver’s behavior

may be relevant, as erratic driving or
6

obvious attempts to evade officers can

support a reasonable suspicion. Aspects of

the vehicle itself may justify suspicion . . . .

In all situations the officer is entitled to assess the facts in light of his experience in

detecting illegal entry and smuggling.

(Internal citations and quotations omitted.)

Given the wealth of factorsthat Border Patrol and BICE agents are allowed to consider,

we would be hard-pressed to determine that

the actions of the agents in this case were unreasonable. The number, behavior, and characteristics of the defendants’ vehicles, particularly considering that the area in which they

were traveling was a notorious alien-smuggling route, led the experienced agents to suspect foul play. The agents in fact spent an

hour observing the defendants’ actions before

pulling the vehicles over, gathering enough information to allow what initially may have

been a mere hunch to grow into reasonable

suspicion.

We likewise agree with the district court

that the appellants lack standing to challenge

the admissibility of Santoyo’s statements on

Fourth Amendment grounds. As the district

court held, appellants cannot establish that

Santoyo’s statements were the fruits of their

own illegal arrests; rather, they were the fruits

of Santoyo’s separate arrest, which he has not

challenged. “Fourth Amendment rights are

personalrights,” and “suppression ofthe product of a Fourth Amendment violation can be

successfully urged only by those whose rights

were violated by the search itself, not by those

who are aggrieved solely by the introduction

of damaging evidence. Coconspirators and

codefendants have been accorded no special

standing.” Alderman v. United States, 394

U.S. 165, 171-72, 174 (1969) (emphasis

added).

Accordingly, we adopt the reasoning and

conclusions of the district court’s thorough

order of June 4, 2004, and we AFFIRM the

partial denial of the motion to suppress.