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

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### m 05-50490

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,
VERSUS


### E DUARDO 

### H ERNANDEZ 

### ,

Defendant-Appellant.

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### m 05-50493

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,
VERSUS


### J UAN 

### C ARLOS 

### D IAZ 

### ,

Defendant-Appellant.

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### m 05-50494

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,
VERSUS


### J ONATHAN 

### S ANCHEZ 

### ,

Defendant-Appellant.

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### m 05-50495

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,
VERSUS


### G ERARDO 

### R ESENDIZ 

### ,

Defendant-Appellant.

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### m 05-50496

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### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,
VERSUS


### C RISTIAN 

### F

ELIPE 

### Q UEVEDO 

### ,

Defendant-Appellant.

____________________________________ Appeals from the United States District Court fo r the Western District of Texas 

### m 2:03-CR-253-2

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Before S MITH , G ARZA , and C LEMENT , Circuit Judges.
J ERRY E. S MITH , Circuit Judge: *
Eduar do Hernandez, Juan Diaz, Jonathan Sanchez, Gerardo Resendiz, and Cristian Quev ado appeal the parti al denial of their motion to suppress, on Fourth Amendment grounds, evidence obtained pursuant to th e Border Patrol ’s roving stop of th eir vehicles on suspicion of illegal smuggling activity. We affirm.
I. On the morning of March 5, 2003, each of the appellants, as well as two other defendants, Michael Santoyo and Luis Alvarez, were driving on highways in the vicinit y of Dryden, Texas. The vehicles operated by the defendants were pick-up trucks, extended-cab trucks, and SUV’s.
Border Patrol and Bureau of Im migration and Customs Enforcement (“BICE”) age nt s stopped each of the vehicles within fifty miles of the Mexican border based on suspicious ac- * Pu rsuant to 5 T H C IR

. R. 47.5, the court has determined that thi s opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.4

tivit y th ey had observed. 1 Between about 4:20 and 5:20 a.m
. th e agents watched th e vehicles, apparently operating in tandem, drive fir st toward and th en away from th e border. Because (1) th e number of vehicles was highly unusual fo r th e normally-deserted roads in th e area, especially given th e time of day, (2) th e vehicles fo llo wed one another (approximately one mile apart), making all of the same turns, (3) each of th e vehicles had a CB radio antenna (a known characteristic of smuggling convoys), (4) som e of th e drivers appeared to be spying on or attem

pting to di stract the attention of l aw enforcement, and (5) th e roads on which th e vehicles were traveling were notorious drug- and alien-smuggling routes, th e agents eventually pulled each vehicle over and questioned each driver regarding his travel plans.
Aft er learning th e defendants’ identities, listening to th eir imprecise descriptions of their travel plans, detecting a pungent body odor in one of th e vehicles, and discovering CB radios, mult iple cell phones, a tarp, and water jugs in two of th e vehicles, 2 th e agents be c ame convinced th at the defendants were part of the Nol asco-Resendiz Organization, an alien-smu ggling operation based in Houston and known fo r employing ta cti cs similar t o 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 defendants remained in their vehicles. The agents then decided to take Resendiz and Sanchez to the Sanderson Border Patrol Station and, returni ng their keys, told the remaining defendants to fo llo w them there. At the station, defendants were handcuffed to their steering whe els. The agents led them inside the station one at a time fo r further questioning. During questioning, Santoyo told theagents that he and the others were in the proces s of sm

uggling aliens that morning. Santoyo also gave the agents the possible lo cation of illegal aliens th at he and t he 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 fo und in the area Santoyo had specified.
Defendants were indict e d for transporting illegal aliens in vio lat io n of 8 U.S.C. § 1324 and aiding and abetting the same in violation of 18 U.S.C. § 2. Santoyo pleaded guilt y of the fir st count of the th

ree-count indictment, charging him wit h aiding an d abetting the illegal transportation of aliens in vio lat io n of §§ 1324(a)(1)(a)(ii) and(a)(2). The remaining 1 The officers who observed the relevant activities and were involved in stopping the vehicles 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 BIC E agent, preceded by three years of experience as a Border Patrol agent. Montes had been a criminal investigator with BICE for seven years, and before that was a Border P atrol 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 from the larger question (continued...) 2 (...continued)

of whether the stop of each vehicle was supported by a re asonable suspicion of crim inal 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 th em, arguing th at th e init ial invest igatory stops of th eir vehicles were not supported by a reasonable suspicio n of criminal act ivit y and that their continued dete nt io n constituted unlawful arrests wit hout probable cause. The motion sought to suppress even th e statem

ents of Santoyo, who neit her joined the motion nor otherwise challenged his stop or arrest.
The distric t c ourt granted in part and denied in part th e mo tion to suppress. The court ruled th at each init ial stop was supported by re ason able suspicion and that all information d iscovered during th ose stops was th erefore admissible. The court al so held that the subsequent detentions of the defendants, starting when Res endiz and Sanchez were placed in patrol cars and th e agents confiscated the car keys of th e remaining defendants, were unlawful arrests u nsupported by probable cause. The court ruled, however, th at the mo vants did not have standing to contest th e a dmissibilit y of Santoyo’s post-arrest statem ents because his arrest did not viol ate their Fourth Amendment rights. Hernandez, Diaz, Sanchez, Resendiz, and Quevado subsequently ent ered conditional guilt y pleas, pending the outcome of their appeal of any sup pression i ssues. These defendants now appeal th e court’s rul ing on the validit y of th e init ial investigatory stops and on th eir standing to challenge th e admissibilit y of Santoyo’s statem

ents. The government does not appeal the court’s rul

ing regarding the unlawfulness of the continued detentions.

II. “We use a two-tiered standard of review fo r appeals from th e denial of a mo tion to suppress: Factual findings are accepted unless clearly erroneous, and the district court’s ult imat e conclusion as to th e 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 ), j udgment 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 it s protections extend to brief investigatory stops of pe rsons or vehicles that fall short of traditional arrest.” United States v. Arvizu , 534 U.S. 266, 273 (2002). “A Unit ed States Border Patrol agent’s tem porary detention of an occupant of a vehicle for investigatory purposes while on roving patrol is constitutional if, at a minimum, the agent reasonably suspects th at an occupant of the vehicles is involved in illegal activit y. ” U nited S tates v. Guerrero-Barajas , 240 F.3d 428, 432 (5th Cir. 2001).
We agree wit h the district court th at the initi al stop of each defendant was supported by a reasonable suspicion of criminal activit y. In United States v. Brignoni-Po nce , 422 U.S. 873, 884-85 (1975), the Court explained that [a]ny number of factors may be taken int o a ccount in deciding whether there is reasonable suspicio n t o stop a car in t he border area. Officers may consider the characteri stics of the area in which they encounter a vehicle . Its proximit y t o th e border, the usual patterns of traf

fic o n t he particular road, and previous experience wit h alien traf fic are all relevant. They also may consider info rmation abou t recent illegal border crossings in the area. The driver’s behavior may be relevant, as erratic driving or6

obvious attem

pts to eva de of

ficers can support a reasonable suspicion. Aspects of th e vehicle it self may justify suspicion

. . . . In all sit uations th e of

ficer is entitled to assess th e facts in l

ight of his experience in detecting illegal ent ry and smuggling. (Internal citations and quotations omitted.)
Given th e wealth of factors th at Border Patrol and BICE agents are allo wed to consider, we would be hard-pressed to determ in e th at th e actions of the agents in this case were unreasonable. The number, behavior, and characteri stics of th e defendants’ vehicles, particularly co nsidering that the area in which they were travel

ing was a notorious alien-smuggl ing route, led th e experienced agents t o susp ect fo ul play. The agents in fact spent an hour observing th e defendants’ actions before pulling th e vehicles over, gathering enough inf ormation to allo w what init ially may have been a mere hunch to grow int o reasonable suspicion.
We likewise agree wit h th e district court th at th e appellants lack standing to challenge th e admissibilit y of Santoyo’s statem ents on Fourth Amendment grounds. As the district court held, appellants cannot establ ish t hat Santoyo’s statem

ents were th e fruit s of their own illegal arrests; rather, th ey were th e fruits of Santoyo’s separate arrest, which he has not challenged. “Fourth Amendment rights are personal rights,” and “suppression of th e product of a Fourth Amendment v io lat io n can be successfully urged only by t hose whose rights were vio lat ed by th e search it self, not by th ose who are aggrieved solely by t he introduction of damaging evidence. C oconspirators and codefendants have been ac corded no special standing

. ” A lderman v. United States , 394 U.S. 165, 171-72, 174 (1969) (emphasis added). Accordingly, we adopt the reasoning and conclusions of the distric t court’s thorough order of June 4, 2004, and we AFFIRM the parti al denial of the motion to suppress.