IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50208

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

LUIS GERARD CERVANTES, also known as Luis Gonzalez CervantezMartinez, 

 Defendant–Appellant.

Appeal from the United States District Court

for the Western District of Texas

Before SMITH, PRADO, and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Luis Gerard Cervantes appeals his conviction on the ground that the 

Border Patrol agents who conducted the traffic stop that led to his arrest lacked 

reasonable suspicion and violated the Fourth Amendment. The district court 

denied Cervantes’s motion to suppress. We affirm.

I

The relevant facts are not in dispute. On a Wednesday in early October,

at approximately 8:30 a.m., Cervantes was driving a Chevrolet Trailblazer

eastbound on Interstate 20 (I-20) near Odessa, Texas, with five passengers. 

That morning, Border Patrol Agents David Collier and Carlos Ramirez were 

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2015

Lyle W. Cayce

Clerk

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on roving patrol and had parked in the median of I-20 when Cervantes’s vehicle

passed them. Collier noticed that the Trailblazer was sagging in the rear or 

perhaps overloaded, and both agents noticed that the vehicle had multiple 

occupants. The agents decided to investigate further.

As the agents neared Cervantes, he switched from the left lane to the 

right lane and began traveling behind an eighteen-wheeler semi-truck that

was being driven about ten to fifteen miles under the seventy-five-miles-perhour speed limit. The agents considered this odd behavior because there were 

no vehicles in the left lane ahead of the Trailblazer when it slowed its speed 

and pulled behind the eighteen-wheeler. As the agents approached

Cervantes’s vehicle, they saw that a passenger was in the rear cargo area of 

the vehicle where there was no seat. They then checked the vehicle’s records 

and learned that it was registered in Morton, Texas, a town north of Odessa. 

The agents drove their patrol car parallel to Cervantes’s and observed that the 

rear passengers were “dirty” and did not appear to have shaved or bathed in 

several days, while the driver and front passenger appeared “clean.” Ramirez 

also noticed that the rear passengers were wearing dirty jackets and heavy 

clothing while the front passenger and Cervantes were wearing short sleeves.

The agents themselves were attired in short sleeves, which they considered 

appropriate for the weather that day. While driving next to Cervantes’s 

vehicle, the agents honked six times. Cervantes did not respond to the honking 

but looked forward and kept his hands tightly on the steering wheel. Neither 

Cervantes nor his front-seat passenger looked in the direction of the agents’ 

vehicle despite the agents’ attempts to obtain their attention.

Collier and Ramirez conducted a traffic stop. As Officer Collier 

approached the Trailblazer, he saw burlap backpacks, one of which was torn, 

and he saw small brick bundles wrapped with brown tape. These bundles were 

consistent with the way in which illegal drugs were often packaged and 

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smuggled, and he believed the bundles contained marijuana. Ultimately, it 

was determined that approximately 170 pounds of marijuana in the backpacks 

that had been carried across the border by the rear passengers. Cervantes and 

all of the passengers were arrested and charged with aiding and abetting 

possession with intent to distribute marijuana.

Cervantes filed a motion to suppress alleging he was stopped without 

reasonable suspicion in violation of the Fourth Amendment. After a hearing, 

the district court denied the motion. Cervantes entered a conditional guilty 

plea and reserved his right to appeal the ruling on his motion to suppress. The 

district court sentenced Cervantes to fifty-one months in prison and three

years of supervised release. Cervantes appeals the denial of his motion to 

suppress.

II

In reviewing the district court’s disposition of the motion to suppress, we 

review legal conclusions de novo, including the conclusion that Collier and 

Ramirez had reasonable suspicion to stop Cervantes, and factual findings for 

clear error.1 We view the evidence presented at a pretrial hearing on a motion 

to suppress in “the light most favorable to the prevailing party,” in this case 

the Government.2

III

Border Patrol agents on roving patrol “may detain vehicles for 

investigation only if they are aware of specific, articulable facts, together with 

rational inferences from those facts, that reasonably warrant suspicion that 

 

1 United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013) (citing United States v. 

Rangel-Portillo, 586 F.3d 376, 379 (5th Cir. 2009) and United States v. Rodriguez, 564 F.3d 

735, 740 (5th Cir. 2009)).

2 Rodriguez, 564 F.3d at 740.

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the vehicle is involved in illegal activities.”3 We weigh the factors outlined by 

the Supreme Court in Brignoni-Ponce4 to determine if reasonable suspicion 

existed to stop a vehicle in a border area.5 The factors that may be considered 

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.6

We look to the totality of the circumstances, and not every factor must weigh 

in favor of reasonable suspicion for it to be present.7 “Factors that ordinarily 

constitute innocent behavior may provide a composite picture sufficient to 

raise reasonable suspicion in the minds of experienced officers.”8

The Supreme Court has explained that evaluation of these “factors in 

isolation from each other does not take into account the ‘totality of the 

circumstances,’ as our cases have understood that phrase.”9 The Supreme 

Court has rejected the proposition that if behavior was “itself readily 

 

3 Garza, 727 F.3d at 440 (quoting United States v. Cardona, 955 F.2d 976, 980 (5th 

Cir. 1992)) (internal quotation marks omitted).

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

5 Garza, 727 F.3d at 440.

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

Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001) (per curiam)).

7 Garza, 727 F.3d at 440 (citing United States v. Zapata-Ibarra, 212 F.3d 877, 884 (5th 

Cir. 2000) and United States v. Hernandez, 477 F.3d 210, 213 (5th Cir. 2007)).

8 United States v. Olivares-Pacheco, 633 F.3d 399, 402 (5th Cir. 2011) (internal 

quotation marks omitted) (quoting Jacquinot, 258 F.3d at 427-28).

9 United States v. Arvizu, 534 U.S. 266, 274 (2002).

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susceptible to an innocent explanation [the behavior] was entitled to ‘no 

weight.’”10 The Supreme Court has observed that

Terry . . . precludes this sort of divide-and-conquer analysis. The 

officer in Terry observed the petitioner and his companions 

repeatedly walk back and forth, look into a store window, and 

confer with one another. Although each of the series of acts was 

“perhaps innocent in itself,” we held that, taken together, they 

“warranted further investigation.”11

The Supreme Court held in United States v. Sokolow that factors which by 

themselves were “quite consistent with innocent travel” collectively amounted 

to reasonable suspicion.12

The agents encountered Cervantes’s vehicle near Penwell, Texas, on I20 traveling east toward Odessa. In determining whether agents had reason

to believe that the occupants of a vehicle had recently crossed the border, our 

court has said that proximity to the border is “a paramount factor in 

determining reasonable suspicion,”13 and when a stop takes place more than 

fifty miles from the border, “we look at the remaining factors most carefully to 

ensure the stop complied with the . . . Fourth Amendment.”14 The distance of 

this stop from the border between Mexico and the United States weighs against 

reasonable suspicion.

 

10 Id.

11 Id. (citing Terry v. Ohio, 392 U.S. 1, 9, 22 (1981)).

12 490 U.S. 1, 7-8 (1989).

13 United States v. Garza, 727 F.3d 436, 441 (5th Cir. 2013) (quoting United States v. 

Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000)) (internal quotation marks omitted); see also 

id. (“[T]his Court has repeatedly emphasized that one of the vital elements in the BrignoniPonce reasonable suspicion test is whether the agents had reason to believe that the vehicle 

in question had recently crossed the border.” (alteration in original) (quoting United States 

v. Melendez-Gonzalez, 727 F.2d 407, 411 (5th Cir. 1984))).

14 United States v. Soto, 649 F.3d 406, 410 (5th Cir. 2011) (quoting United States v. 

Orozco, 191 F.3d 578, 581 (5th Cir. 1999)) (internal quotation marks omitted).

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That the stop occurred more than fifty miles from the border is not 

dispositive, however.15 We have said that “even where a vehicle is beyond the 

fifty mile benchmark, the fact that the northbound vehicle was traveling from 

the direction of the Mexico-United States border can be a legitimate factor 

when viewed in conjunction with other factors.”16 There are other factors 

present in this case that support reasonable suspicion.

Though the point at which the vehicle was stopped was approximately 

200 miles from the border between Mexico and Texas, the district court found 

that Interstate 20, on the west side of Odessa, where this stop occurred, “is well 

known for its prevalence of drug and alien smuggling.” The evidence in the 

record supports that finding. In addition, Officer Collier testified that he had 

made more than 100 stops in the area west of Odessa on Interstate 20 that had 

resulted in discovering undocumented aliens and illegal drugs on “regular 

occasions.”

Our court has also recognized that this portion of Interstate 20 is “a 

favored route for illegal alien smugglers.”17 In another decision from this court, 

we recognized that there was evidence that the same location at which 

Cervantes was stopped, on Interstate 20 near Penwell, Texas, was “notorious 

for alien smuggling and narcotics.”18

 

15 See United States v. Varela-Andujo, 746 F.2d 1046, 1047 (5th Cir. 1984)

(determining reasonable suspicion existed even though the stop occurred over 170 miles from 

the Mexican border); United States v. Salazar-Martinez, 710 F.2d 1087, 1088 (5th Cir. 1983)

(determining reasonable suspicion existed even though the stop occurred 165 miles from the 

Texas-Mexico border).

16 Soto, 649 F.3d at 410.

17 Orozco, 191 F.3d at 582; see also Unites States v. Puac-Zamora, 56 F.3d 1385, 1385

(5th Cir. 1995) (per curiam) (unpublished but precedential under 5TH CIR. R. 47.5).

18 United States v. Morales, 191 F.3d 602, 604 (5th Cir. 1999).

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In United States v. Orozco and United States v. Morales, this court

determined that reasonable suspicion existed for stops on I-20 near Penwell, 

Texas, where Cervantes was stopped. In Orozco, the driver was traveling 

eastbound on I-20 at about 9:30 a.m. on a Sunday in a pick-up truck.19 Orozco, 

the front passenger, was slumped over, and the driver was looking straight 

ahead.20 The bed of the truck was covered with a blue tarp.21 The truck was 

riding low and weaving back and forth on the road.22 The agent began 

following the truck, pulled up next to the truck, and honked his horn.23 The 

driver did not look at the agent, although the agent was not sure if the driver 

heard the honking.24 The agent noticed that the spare tire was in the backseat 

with a jacket draped over it, which indicated to the agent that there was 

something in the truck bed.25 The agent testified that “he had stopped 

numerous loads of aliens on that stretch of road, generally between 9:00 and 

10:00 in the morning.”26

The Orozco court stated that because the stop took place between 200-

300 miles from the border, the proximity factor did not “cut[] in favor of a 

finding of reasonable suspicion.”27 However, other factors weighed in favor of 

reasonable suspicion: (1) the area of I-20 was known for smuggling, and the 

agent “had personally captured approximately 20 loads of aliens in the same 

 

19 Orozco, 191 F.3d at 579-80.

20 Id. at 580.

21 Id.

22 Id.

23 Id.

24 Id. at 580 & n.2.

25 Id. at 580.

26 Id.

27 Id. at 581.

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area over the previous five month period”;28 (2) the agent testified that “the 

majority of smugglers passed through that particular stretch of I-20 on 

weekends between 9 and 10 a.m., the precise day and time in which Orozco’s 

pickup was traveling,” and Orozco was traveling eastbound, which was 

consistent with other smuggling loads;29 and (3) the truck was heavily loaded 

and weaving; the truck bed was covered by a tarp, “a common technique 

employed by smugglers to hide illegal aliens,” and the spare tire was in the 

back seat.30 It is unclear how much weight the court gave to Orozco’s behavior 

(slumping in his seat) or to the driver’s failure to acknowledge the agent after 

he honked, but these factors were part of the court’s analysis.31 The court 

determined that, based on the totality of the circumstances, reasonable 

suspicion existed.32

In Morales, our court determined reasonable suspicion existed for a stop 

on I-20 near Penwell, Texas.33 The court accorded weight in favor of reasonable 

suspicion to (1) the agent’s 28 years of experience and the fact that “[i]n the 

past year alone, [he] had detained approximately 600 illegal aliens on this 

 

28 Id. at 582.

29 Id.

30 Id.

31 Id. (“The trial judge noted that the ‘driver’s behavior’ in addition to agent Bollier’s 

observation that Orozco was ‘trying to hide’ were factors warranting Bollier’s continual 

pursuit of the vehicle. Prior to stopping the truck, Bollier pulled next to the truck, rolled 

down his window to display his uniform and honked at the driver; however, this attempt to 

grab the driver’s attention failed—yet another sign that something was amiss. We have held 

that while slouching, alone, may not be a significant factor we look to overall behavior of the 

vehicle driver. Moreover the avoidance of eye contact may or may not be entitled weight; and 

it is simply one factor to consider in observing overall behavior. Although some of the factors 

relied on by the trial judge would not alone amount to reasonable suspicion, reasonable 

suspicion determinations are not limited to analysis of one factor.” (citations omitted)).

32 Id. at 583.

33 United States v. Morales, 191 F.3d 602, 603 (5th Cir. 1999).

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stretch of the highway”;34 (2) the pick-up truck had underinflated tires and 

bounced as it passed over bumps in the road, indicating that it was heavily 

loaded;35 and (3) the truck bed had a fiberglass cover.36 The court mentioned 

the following facts, but it is unclear if the court gave weight to them: (1) “[t]he 

majority of the smuggling detected by the Agent occurred between 9:30-10:00 

a.m.[, and the driver] passed by the Agent during that time period,”37 and (2) 

the driver did a “doubletake” when he saw the agent’s marked vehicle, slowed 

down, and after the agent started following him, weaved back and forth on the 

road.38

Based on the record in the present case, the factors other than proximity 

to the border weigh in favor of reasonable suspicion. Collier testified that 

Cervantes’s vehicle appeared to be sagging in the rear, and in his experience, 

that is indicative of narcotics smuggling because smuggling vehicles usually 

have multiple occupants. While Collier acknowledged that the vehicle did not 

show any indication that it had recently “gone off road,” and that he did not 

know if there was an alternative explanation for the vehicle riding low, such 

as the vehicle’s shocks were worn, given Collier’s field experience observing

weighed-down vehicles, the fact that Cervantes’s vehicle was riding sagging in 

the rear is part of the totality of the circumstances that gave rise to reasonable 

suspicion.39

 

34 Id. at 604, 606.

35 Id. at 605-07.

36 Id. at 607.

37 Id. at 605.

38 Id.

39 See United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975) (stating that whether 

a vehicle “appear[s] to be heavily loaded” is a factor to consider when determining reasonable 

suspicion); United States v. Olivares-Pacheco, 633 F.3d 399, 405 (5th Cir. 2011) (determining 

reasonable suspicion did not exist for stop in which vehicle was “neither over- nor underloaded”); United States v. Guerrero-Barajas, 240 F.3d 428, 433 (5th Cir. 2001) (according 

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Collier testified that, by his estimate, when Cervantes passed the agents, 

Cervantes was traveling “at or approximately at highway speeds.” As the 

agents neared Cervantes, although there were no vehicles in front of him or 

attempting to pass him, Cervantes quickly switched from the left lane to the 

right lane and pulled behind a semi-truck that was traveling about ten to 

fifteen miles under the speed limit. Collier stated that, while not illegal, this 

type of driving behavior was consistent with other smuggling loads he had 

seen, and it was particularly significant because Cervantes had time to pass 

the semi-truck but instead chose to follow very close behind it. While driving 

parallel to Cervantes’s vehicle in their marked Border Patrol vehicle, the 

agents honked six times. Ramirez testified that Cervantes had to know they 

were Border Patrol agents because Cervantes had passed them when they were 

 

some weight to the fact that the vehicle was “riding low”); United States v. Ceniceros, 204 

F.3d 581, 585 (5th Cir. 2000) (“A vehicle’s heavily-laden appearance may support a finding of 

reasonable suspicion and corroborate an informant’s tip.”); United States v. Cardona, 955 

F.2d 976, 981 (5th Cir. 1992) (stating the fact that a vehicle is riding low “is a permissible 

factor for evaluation”); United States v. Garcia, 732 F.2d 1221, 1225 (5th Cir. 1984) 

(determining reasonable suspicion existed and according some weight to fact that “the 

camper appeared heavily loaded”); United States v. Garza, 544 F.2d 222, 224-25 (5th Cir. 

1976) (per curiam) (determining reasonable suspicion existed for stop sixty-plus miles from 

the border in part because “the car appeared to be heavily loaded”); United States v. Lara, 

517 F.2d 209, 210-11 (5th Cir. 1975) (determining reasonable suspicion existed for stop 

approximately two miles from the border in part because the “vehicle was riding low and 

appeared to be heavily loaded”); cf. United States v. Moreno-Chaparro, 180 F.3d 629, 632-33 

(5th Cir. 1998) (determining reasonable suspicion did not exist for stop in part because “[t]he 

agent could not point to anything suspicious about the truck. It contained no visible 

passengers, it had not been modified in an obvious way, and it was not riding low to the 

ground”). But see United States v. Melendez-Gonzalez, 727 F.2d 407, 412 (5th Cir. 1984) 

(“[E]ven if relevant, the fact that defendant’s car was supposedly ‘riding low’ has not been 

given determinative weight in border patrol cases.” (footnote omitted)); United States v. 

Orona-Sanchez, 648 F.2d 1039, 1040, 1042 (5th Cir. Unit A 1981) (determining reasonable 

suspicion did not exist for stop on “lightly traveled state roadway” approximately fifty miles 

from the border when, among other things, the vehicle was heavily loaded, and the driver 

“slowed down considerably” and began driving “somewhat erratically”); United States v. 

Pacheco, 617 F.2d 84, 86 (5th Cir. 1980) (determining reasonable suspicion did not exist for 

stop and attributing “little weight” to fact that vehicle was riding low).

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parked in the median. During this time, Cervantes looked forward and kept 

his hands tightly on the steering wheel.

Collier stated that he had not used the honking technique many times 

before, so he did not opine as to whether it was normal for Cervantes to 

continue looking forward. Collier conceded that it was safe for Cervantes to 

keep his eyes on the road, but Ramirez testified the lack of eye contact 

indicated to him that the occupants wanted to “shield the[m]selves from us.” 

Collier further testified that while semi-trucks often travel below the speed 

limit, it was suspicious that Cervantes began traveling below the speed limit. 

Cervantes’s decision to decelerate and pull behind the semi-truck as the agents 

neared his vehicle even though no other vehicles were near him40 and his 

 

40 See United States v. Neufeld-Neufeld, 338 F.3d 374, 377, 382 (5th Cir. 2003) 

(according weight to the defendant’s considerable deceleration after seeing the marked patrol 

car, and the defendant did not appear to be speeding beforehand); United States v. EspinosaAlvarado, 302 F.3d 304, 306-07 (5th Cir. 2002) (per curiam) (according some weight to the 

driver’s behavior in response to the agents’ presence—“looking excessively in his mirrors and 

slowing the [vehicle] to 10 miles per hour below the speed limit”); United States v. Jacquinot, 

258 F.3d 423, 429 (5th Cir. 2001) (per curiam) (“Although deceleration in the presence of a 

patrol car may be completely innocent behavior, this court has noted that such behavior may 

be suspicious if the driver was not speeding when first observed.” (citing United States v. 

Villalobos, 161 F.3d 285, 291 (5th Cir. 1998))); Guerrero-Barajas, 240 F.3d at 433 

(determining reasonable suspicion existed and according some weight to fact that “the driver 

slowed and began to swerve within his lane once the Agents began to follow him”); United 

States v. Zapata-Ibarra, 212 F.3d 877, 879, 882 (5th Cir. 2000) (determining reasonable 

suspicion existed in part because the defendant was initially traveling at the speed limit and 

“decelerated considerably” when the agent neared the defendant’s vehicle); Morales, 191 F.3d 

at 605 (noting the defendant slowed down after passing by the marked patrol vehicle);

Villalobos, 161 F.3d at 291 (determining reasonable suspicion existed for a stop in part 

because the vehicle “decelerated noticeably when Agent Hall pulled in front of [the driver], 

even though [the driver] had not been speeding” and “dropped back a full mile or more”);

Cardona, 955 F.2d at 978, 981 (stating the defendant slowed down “considerably” after the 

agents began following him); cf. United States v. Arvizu, 534 U.S. 266, 275-76 (2002) (stating 

“a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law 

enforcement officer” may add to reasonable suspicion in some circumstances); Zapata-Ibarra, 

212 F.3d at 882-83 (“[The driver’s] deceleration and swerving on a [two-lane] road at 

nighttime, in response to a rapidly accelerating vehicle with its high-beam lights on, weighs, 

at best, only slightly in favor of the reasonableness of [the agent’s] suspicions.”); United States 

v. Nichols, 142 F.3d 857, 866, 868 (5th Cir. 1998) (taking into account fact that the driver 

“was traveling at an unusually slow speed”); Garcia, 732 F.2d at 1225 & n.4 (determining 

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failure to acknowledge the agents’ presence after the honking41 are entitled to 

 

reasonable suspicion existed and according some weight to “the unusually slow speed of [the] 

vehicle,” about forty to forty-five miles per hour on Interstate 35). But see Ceniceros, 204 F.3d 

at 583, 585 (determining reasonable suspicion existed and giving weight to the fact that the

vehicle “drifted within its lane” but not to the fact that the vehicle’s “speed fluctuated between 

55 and 70 miles per hour”); United States v. Chavez-Villareal, 3 F.3d 124, 126-27 (5th Cir. 

1993) (determining reasonable suspicion did not exist for stop roughly 350 miles from the 

border on Interstate 40: “We find nothing suspicious about a driver changing lanes and 

slowing down when he realizes a vehicle is approaching from the rear; that is a normal 

reaction if the driver wishes to let the tailing vehicle pass.”); United States v. Diaz, 977 F.2d 

163, 164-65 (5th Cir. 1992) (determining reasonable suspicion did not exist to stop vehicle 

that flashed high beams about twenty yards from the parked patrol vehicle and then “slowed 

from an estimated 75 to about 40 miles per hour” and specifically noting “there is nothing 

suspicious about a speeding car slowing down after a marked patrol unit turns to follow, with 

or without flashing lights.”).

41 See United States v. Orozco, 191 F.3d 578, 582 (5th Cir. 1999) (according, in case 

involving a stop on I-20 near Odessa, Texas, some weight to driver’s attempt to hide and 

failure to acknowledge agent’s presence after agent honked horn and noting “the avoidance 

of eye contact may or may not be entitled weight”); see also Neufeld-Neufeld, 338 F.3d at 382 

(determining reasonable suspicion existed for stop on U.S. Highway 385 in Big Bend National 

Park in part because the driver “stared straight ahead” and “failed to acknowledge [the 

agent]”); United States v. Aldaco, 168 F.3d 148, 152 (5th Cir. 1999) (“The avoidance of eye 

contact may or may not be entitled weight; and it is simply one factor to consider in observing 

overall behavior.”); Nichols, 142 F.3d at 864, 868 (noting that the avoidance of eye contact, 

by itself, is entitled to “no weight,” but stating the driver Nichols’s overall behavior “obviously 

adds to the reasonableness of the Border Patrol agents’ suspicion. Nichols stopped at the 

intersection for a full twenty to thirty seconds. The Border Patrol vehicle was in plain view 

less than 15 feet away from Nichols’s vehicle. A street light initially illuminated the Border

Patrol vehicle, and the agents illuminated Nichols’s truck with their headlights as Nichols 

approached the intersection. The Border patrol agents observed that, not only did Nichols 

avoid making eye contact, but he also did not even look in their direction when they 

illuminated their headlights, nor did he look in either direction down the road as if to see 

which way to go. Instead, Nichols simply stared straight ahead into the brush.”). But see

United States v. Soto, 649 F.3d 406, 411 (5th Cir. 2011) (attaching “little significance to the 

failure of the driver . . . to make eye contact with the agents while they drove beside her 

vehicle”); Moreno-Chaparro, 180 F.3d at 632 (“We are persuaded that in the ordinary case, 

whether a driver looks at an officer or fails to look at an officer, taken alone or in combination 

with other factors, should be accorded little weight. To conclude otherwise ‘would put the 

officers in a classic heads I win, tails you lose position. The driver, of course, can only lose.’”

(footnote omitted) (some internal quotation marks omitted) (quoting United States v. 

Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977))); Chavez-Villareal, 3 F.3d at 126-27 

(determining reasonable suspicion did not exist for stop roughly 350 miles from the border 

on Interstate 40 in situation in which the driver “had a rigid demeanor and looked straight 

ahead”; after the agent began to follow the driver, the driver “began to change lanes and 

speeds, slowing down, then speeding up”; and the driver continued to look straight ahead 

despite the agent pulling up next to him); Orona-Sanchez, 648 F.2d at 1040, 1042

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some weight in favor of reasonable suspicion.

In addition to Cervantes, there were five passengers in the Trailblazer: 

one in the front passenger seat, three in the back seat, and one in the rear 

cargo area. The passenger in the front seat was female, and the rest were 

males. The agents testified that it is not uncommon to see a vehicle with 

multiple occupants on I-20; however, multiple passengers were usually seen in 

vehicles that were used in an oilfield business. Those vehicles were usually

flatbed, dually or pickup trucks, generally with lettering on the side, big diesel 

tanks, racks, tool boxes or brush guards attached. The Trailblazer, a small 

sport utility vehicle (SUV), had none of these features. While Ramirez agreed

that if there were a fifth passenger in Cervantes’s vehicle, the only space for 

him would be in the rear cargo area, the agents testified it is very uncommon 

to see a passenger in the cargo area of a passenger vehicle, such as a 

Trailblazer, where there is no seat or seatbelt. The agents further stated that 

such a seating arrangement is consistent with smuggling. Collier additionally 

testified that a vehicle with multiple occupants is typical for narcotics 

smuggling. While the fact that a vehicle had multiple occupants is not 

necessarily suspicious,42 the travelers’ positions in this vehicle are a 

consideration supporting the agents’ stop of the vehicle.43

 

(determining reasonable suspicion did not exist for stop approximately fifty miles from the 

border when, among other things, the vehicle was heavily loaded, and the driver slowed down 

“considerably,” avoided eye contact with agents, and began driving “somewhat erratically”); 

Escamilla, 560 F.2d at 1233 (stating that failure to acknowledge the agents’ presence “cannot 

weigh in the balance in any way whatsoever”).

42 See Olivares-Pacheco, 633 F.3d at 405 (stating that six occupants in a truck is 

“neither illegal nor excessive”).

43 See Zapata-Ibarra, 212 F.3d at 883 (“We also consider relevant the number of 

passengers in the vehicle. [The agent] saw ‘several passengers’ in the van, and, although this 

number is not unusual for a van, it is also consistent with alien smuggling.”); cf. Soto, 649 

F.3d at 411 (noting that a car with two passengers was not unusual); United States v. ChavezChavez, 205 F.3d 145, 149 (5th Cir. 2000) (“Most suspiciously, the five adult passengers 

visible to the agents appeared dirty and disheveled . . . .”); Morales, 191 F.3d at 604 (noting 

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Regarding their appearance, the front passenger was wearing short 

sleeves and appeared “clean,” while the rear passengers wore heavy clothing 

and jackets and appeared “dirty, [like] they just came off the brush.” The rear 

passengers appeared to have not bathed or shaved in several days. It was 8:30 

in the morning when the stop occurred and therefore unlikely that the rear 

passengers’ appearance was due to working outdoors that day. Ramirez stated 

that at the time of the stop, he was wearing short sleeves, and short sleeves 

were more appropriate for the temperature that day than the rear passengers’ 

clothing. He testified that immigrants who had been in the brush crossing the 

border often worn a jacket for protection against the brush and thorns and for 

warmth during the cool nights. He had observed that type of dress on many 

occasions when undocumented aliens were encountered. As to why the back 

passengers had jackets while inside the vehicle but the driver and front 

passenger did not, Ramirez agreed that individuals respond to temperature 

differently, and he did not know the temperature inside Cervantes’s vehicle

but expressed some doubt that there could be different temperatures of that 

magnitude in a small SUV. He also testified that all the passengers appeared 

to be Hispanic. The evidence regarding the rear passengers’ attire in 

conjunction with the time of day and the noticeable difference in appearance 

and dress between the rear passengers and the front passenger are also part 

of the totality of the circumstances that gave rise to reasonable suspicion.44

 

that “an extraordinary number of passengers” is a factor to consider in deciding whether to 

make a traffic stop (quoting Brignoni-Ponce, 422 U.S. at 885)); cf. Moreno-Chaparro, 180 F.3d

at 632-33 (determining reasonable suspicion did not exist for stop in part because “[t]he agent 

could not point to anything suspicious about the truck. It contained no visible passengers, it 

had not been modified in an obvious way, and it was not riding low to the ground”).

44 See Brignoni-Ponce, 422 U.S. at 885 (noting, in its list of reasonable-suspicion 

factors, the Government’s argument that “trained officers can recognize the characteristic 

appearance of persons who live in Mexico, relying on such factors as the mode of dress and 

haircut”); Chavez-Chavez, 205 F.3d at 147-50 (“Most suspiciously, the five adult passengers 

visible to the agents appeared dirty and disheveled, which has been considered reasonably 

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The agents testified that I-20 has “heavy traffic coming from the south” 

and that they patrol I-20 frequently based on their knowledge that “alien and 

narcotic loads are entering from the south and . . . [I-20]’s a good highway that 

leads up to Odessa and north.” As we have noted, I-20’s reputation as a 

smuggling route weighs in favor of reasonable suspicion.45 Additionally, at the 

time of the suppression hearing, Collier had over sixteen years of experience 

as a Border Patrol agent, ten of which were spent in the Midland area, and

Ramirez had eleven years of experience, three of which were spent in the 

Midland area. The agents testified that their main duty is traffic observation 

and that they often watch traffic on I-20. Their substantial experience is a 

 

suspicious in prior cases. As discussed previously, the suspicion raised by the dirty 

appearance of the passengers is heightened given that the stop occurred at 8:00, decreasing 

the likelihood that they were returning from a day of outdoor labor.” (citation omitted)); see 

also United States v. Inocencio, 40 F.3d 716, 720, 723 (5th Cir. 1994) (“[A]lthough [the driver] 

appeared to be dressed as a workman, his clothing appeared too clean to have been working 

in the field.”); Garcia, 732 F.2d at 1222, 1224 (5th Cir. 1984) (“This Court also has relied upon 

an agent’s observation, as was present here, that occupants of the vehicle were unwashed 

and unkempt,” “a characteristic considered common to individuals who have recently spent 

time in the brush.” “Moreover, the lateness of the hour substantially reduces the likelihood 

that those individuals were returning from outdoor work.” (citation omitted)). But see United 

States v. Jones, 149 F.3d 364, 369 (5th Cir. 1998) (“A factual condition which is consistent 

with the smuggling of illegal aliens in a particular area, will not predicate reasonable 

suspicion, if that factual condition occurs even more frequently among the law abiding public 

in the area.”).

45 See United States v. Garza, 727 F.3d 436, 441 (5th Cir. 2013) (“The area’s reputation 

as a smuggling route supports [the agent’s] reasonable suspicion.”); United States v. RicoSoto, 690 F.3d 376, 380 (5th Cir. 2012) (determining that although the stop occurred

approximately 450 miles from the border in Lake Charles, Louisiana, reasonable suspicion 

existed in part because the stop occurred on I-10, “a major alien-smuggling corridor”); United 

States v. Rivera-Gonzalez, 413 F. App’x 736, 739 (5th Cir. 2011) (giving weight to “the 

prevalence of drug and illegal alien smuggling on I-20 near Midland”); Morales, 191 F.3d at

604 (determining reasonable suspicion existed in part based on the agent’s testimony that “I20 is ‘notorious for alien smuggling and narcotics.’”); Orozco, 191 F.3d at 582 (“Although the 

stop was not within fifty miles of the border, other facts existed indicating that the particular 

stretch of I-20 [fifteen miles from Odessa, Texas,] was a favored route for illegal alien 

smugglers.”). But see Olivares-Pacheco, 633 F.3d at 401, 404 (according minimal to no weight 

to I-20’s reputation as a smuggling route).

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factor weighing in favor of reasonable suspicion, in light of what they 

observed.46

Cervantes points to other evidence that he contends require us to 

conclude that the agents had no reasonable suspicion when they stopped his

Trailblazer. Collier testified that people drive to their jobs in Odessa in the 

mornings and that traffic is heavy at those times. The agents did not testify 

that this time or day of the week had any particular significance to them,47 and 

there is nothing inherently unusual about traveling on a major thoroughfare 

on a weekday morning.48

Collier testified that Cervantes’s vehicle was registered in Morton, 

Texas, approximately 135 miles north of Odessa. There are highways that 

connect Odessa to Morton. “A vehicle’s registration may, under some 

 

46 See Brignoni-Ponce, 422 U.S. at 885 (“In all situations the officer is entitled to assess 

the facts in light of his experience in detecting illegal entry and smuggling.”); Garza, 727 F.3d 

at 441-42 (“[A]n officer’s experience is a contributing factor in determining whether 

reasonable suspicion exists.” (internal quotation marks omitted) (quoting Zapata-Ibarra, 212 

F.3d at 882)); Rico-Soto, 690 F.3d at 380 (“[The agent] has worked for the Border Patrol for 

19 1⁄2 years, ten of which were in Lake Charles. He has pulled over vans transporting illegal 

aliens in that area multiple times. His extensive experience allows him to recognize 

suspicious circumstances that less-familiar outside observers might never realize were 

noteworthy.”); Nichols, 142 F.3d at 871 (“The interplay of the agents’ past experience 

demonstrates the importance of viewing the factors in light of the totality of the 

circumstances.”).

47 See, e.g., Rico-Soto, 690 F.3d at 380 (determining reasonable suspicion existed in 

part because “the van was traveling westbound through [the agent’s] location in the midmorning, the main time, route, and direction [the agent’s] past experience has shown 

smugglers pass by through the area”); Chavez-Chavez, 205 F.3d at 148 (determining 

reasonable suspicion existed in part because “[t]he agents testified that illegal aliens often 

travel north on Highway 286 at 8:00 a.m., the approximate time of the stop at issue” and the 

occupants appeared “dirty and unkept”).

48 Cf. Olivares-Pacheco, 633 F.3d at 405 (determining reasonable suspicion did not 

exist for a stop made on I-20 near Odessa and labeling the time of the stop (10:30 a.m. on a 

Monday) “the most innocuous conceivable hour”); United States v. Rangel-Portillo, 586 F.3d 

376, 382 (5th Cir. 2009) (“What is more indicative of a stop lacking in reasonable suspicion is 

. . . what is missing from the record. In the current case, . . . the time of the stop was not 

suspicious.”).

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circumstances, add to reasonable suspicion,”49 and here, the facts were 

consistent with traveling to Morton.50 The agents also testified that the 

decision to pull Cervantes over was not based on a tip or information from an 

informant. Although Collier had performed numerous traffic stops in the area, 

he could not recall exactly how many recent arrests he had made, and Ramirez 

stated that he could recall making one arrest in the months preceding 

Cervantes’s arrest. We have said that the lack of a tip or information about 

recent illegal trafficking in the area detracts from reasonable suspicion.51

The facts of the present case are similar, to some degree, to facts 

discussed in United States v. Oliver-Pacheco.52 In that case, the Fifth Circuit 

determined no reasonable suspicion existed.53 Like Cervantes, Olivares-

 

49 Olivares-Pacheco, 633 F.3d at 404.

50 See Rico-Soto, 690 F.3d at 381 (“[I]t is not unusual. . . for a car to be headed toward 

the city in which it is registered . . . . The fact that [the defendant] was driving on Interstate 

10 alone would not be too helpful, because it is the most direct route back to Houston, where 

the van is registered.”); Olivares-Pacheco, 633 F.3d at 404 (determining a vehicle’s 

registration provided “minimal if any suspicion” when vehicle was stopped traveling east on 

I-20 near Odessa and was registered in the Dallas-Fort Worth area); United States v. Soto, 

649 F.3d 406, 408-09, 411 (5th Cir. 2011) (determining reasonable suspicion existed to stop 

the defendant’s vehicle on a weekday morning on Interstate 35 between Laredo and San 

Antonio, Texas, but giving no weight to the vehicle’s registration in city in southeast Texas);

United States v. Espinosa-Alvarado, 302 F.3d 304, 306 (5th Cir. 2002) (per curiam)

(determining reasonable suspicion existed to stop defendant’s vehicle less than one mile from 

the border and according some weight to the fact that the vehicle “was registered in New 

Mexico, but was over 45 miles from the New Mexico/Texas border on a work-day, driving east 

on a desolate stretch of Hwy 20 usually trafficked by local residents”); United States v. Lopez, 

564 F.2d 710, 713 (5th Cir. 1977) (“[W]e view the fact that the car was old, with a large trunk 

and out-of-county license plates, as having only minor importance. We would have thought 

it obvious that citizens may leave their state or county without having their purposes 

questioned. . . . We are a people on the move, and nary an eyebrow should be raised by seeing 

a Harris County license plate over 50 miles from our neighbor to the south.”).

51 See Rangel-Portillo, 586 F.3d at 382 (“What is more indicative of a stop lacking in 

reasonable suspicion is . . . what is missing from the record. In the current case, . . . there is 

no evidence to indicate that the officer received a tip from an anonymous informant.”).

52 633 F.3d 399 (5th Cir. 2011).

53 Id. at 409.

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Pacheco was traveling eastbound, in the right lane, on I-20 near Odessa, Texas, 

on a weekday morning (10:30 a.m.).54 Cervantes drove a Trailblazer, an SUV, 

while Olivares-Pacheco drove an extended-cab pick-up truck.55 Both vehicles 

were registered in another area of Texas accessible from I-20 or roads 

stemming from I-20.56 Like Cervantes’s vehicle, there were six occupants in 

Olivares-Pacheco’s vehicle, but one of the passengers in Cervantes’s vehicle 

traveled in the rear cargo area where there was no seat.57 Also unlike 

Cervantes, who decelerated when the agents began catching up to him, 

Olivares-Pacheco drove at the speed limit.58 Neither Cervantes nor OlivaresPacheco engaged in erratic driving behavior.59 Olivares-Pacheco’s vehicle had 

brush underneath it, and Cervantes’s vehicle appeared to be riding low.60 In 

both situations, the drivers did not acknowledge the agents’ presence when the 

agents pulled up next to their vehicles; in Cervantes’s situation, the agents also 

honked multiple times.61 One of the passengers in Olivares-Pacheco’s vehicle 

pointed in the opposite direction of the agents, and the others looked that 

way.62 The passengers in Cervantes’s vehicle were dirty and wearing jackets, 

while the front passenger and Cervantes were clean and in short sleeves.

 

54 Id. at 401.

55 Id.

56 Id.

57 Id.

58 Id. at 401, 405.

59 Id.

60 Id. at 401, 403.

61 Id.

62 Id.

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In Olivares-Pacheco, this court determined reasonable suspicion did not 

exist for the stop. 63 The only factor the court considered as solidly weighing in 

favor of reasonable suspicion was the agents’ extensive experience.64 The 

differences between Olivares-Pacheco and the present case are that:

(1) Cervantes changed lanes and decelerated; (2) the rear passengers in 

Cervantes’s vehicle wore jackets, were dirty, appeared not to have shaven or 

bathed for days, and the time of the stop was inconsistent with returning from 

work; (3) one of the passengers was in the rear cargo area; (4) the agents 

honked at Cervantes, making his failure to acknowledge them more notable; 

and (5) Cervantes’s vehicle was riding low. While there is conflicting case law, 

support can be found as to the relevance of each of these factors, with the 

exception of the fact that the passengers wore jackets.65 Both of the agents

who made the stop were experienced in apprehending alien smugglers, and the 

agents were personally familiar with the appearance of aliens who had 

 

63 Id. at 409 (“We are satisfied that, if we were to side with the government in this 

case and affirm the district court’s denial of the defendant’s motion to suppress, we would be 

doing so on the barest articulation of facts that we have ever credited as constituting 

reasonable suspicion. This we are unwilling to do.”).

64 Id. at 404.

65 See, e.g., United States v. Neufeld-Neufeld, 338 F.3d 374, 377, 382 (5th Cir. 2003) 

(according weight to the defendant’s considerable deceleration after seeing the marked patrol 

car, and the defendant did not appear to be speeding beforehand); United States v. GuerreroBarajas, 240 F.3d 428, 433 (5th Cir. 2001) (according some weigh to fact that the vehicle was 

“riding low”); United States v. Orozco, 191 F.3d 578, 582 (5th Cir. 1999) (according, in case 

involving a stop on I-20 near Odessa, Texas, some weight to driver’s attempt to hide and 

failure to acknowledge agent’s presence after agent honked horn and noting “the avoidance 

of eye contact may or may not be entitled weight”); United States v. Zapata-Ibarra, 212 F.3d 

877, 883 (5th Cir. 2000) (“We also consider relevant the number of passengers in the vehicle. 

[The agent] saw ‘several passengers’ in the van, and, although this number is not unusual 

for a van, it is also consistent with alien smuggling.”); United States v. Chavez-Chavez, 205 

F.3d 145, 147-50 (5th Cir. 2000) (“Most suspiciously, the five adult passengers visible to the 

agents appeared dirty and disheveled, which has been considered reasonably suspicious in 

prior cases. As discussed previously, the suspicion raised by the dirty appearance of the 

passengers is heightened given that the stop occurred at 8:00, decreasing the likelihood that 

they were returning from a day of outdoor labor.” (citation omitted)).

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emerged from brushy areas after crossing the border, including the types of 

clothing typically worn. The agents testified that the appearance of the 

passengers in Cervantes’s vehicle was entirely consistent with aliens who had 

crossed the border and traveled through the Texas brush. The experience of 

agents in circumstances such as these is entitled to weight.66 There is evidence 

in the present case that was not presented in Oliver-Pacheco. We must 

consider the totality of the circumstances that faced Agents Collier and 

Ramirez.

Viewing the evidence in the light most favorable to the Government,67

and considering the totality of the circumstances,68 the agents had reasonable 

suspicion to stop Cervantes. The traffic stop did not violate the Fourth 

Amendment.

* * *

For the aforementioned reasons, we AFFIRM the district court’s 

judgment.

 

66 See, e.g., United States v. Arvizu, 534 U.S. 266, 273-74 (2002) (“[O]fficers [may] draw 

on their own experience and specialized training to make inferences from and deductions 

about the cumulative information available to them that ‘might well elude an untrained 

person.’” (quoting United States v. Cortez, 449 U.S. 411, 418 (1981))); id. (“[A] reviewing court 

must give ‘due weight’ to factual inferences drawn by . . . local law enforcement officers.” 

(citing Ornelas v. United States, 517 U.S. 690, 699 (1996))); Orozco, 191 F.3d at 581-82.

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

68 United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013).

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EDWARD C. PRADO, Circuit Judge, dissenting:

Because this border-patrol stop occurred more than 200 miles from the 

U.S.–Mexico border based on little more than innocuous, safe, lawful driving 

behavior, I respectfully dissent. Cervantes was driving his five-seat Chevrolet

Trailblazer SUV eastbound with five passengers at 8:30 a.m. on a Wednesday

morning. When border patrol drove up behind him, he changed lanes from the 

left lane to the right line behind a slow-moving 18-wheel semi-truck. The SUV

slowed to match the truck’s speed. The border patrol agent then pulled up 

alongside the left side of Cervantes’s SUV, boxing Cervantes in—with an 18-

wheel truck in front of him, a border patrol car to his left, and the road shoulder 

to his right. The border patrol agent honked his horn, but Cervantes kept his 

eyes on the road. These facts—considered together as part of the totality of the 

circumstances and examined charily due to the substantial distance between 

the stop and the border—do not support reasonable suspicion that Cervantes 

had smuggled aliens or contraband across the U.S.–Mexico border. 

We confronted a strikingly similar situation, and reached a conclusion 

opposite from the majority opinion, in a case involving a border-patrol stop of 

a vehicle that was also travelling eastbound on this very stretch of highway on 

a weekday morning. United States v. Olivares–Pacheco, 633 F.3d 399, 401 (5th 

Cir. 2011). We not only held that the stop was unconstitutional because the 

border patrol agents lacked reasonable suspicion, we also characterized the 

case as presenting “facts of an unprecedented suspicionless nature.” Id. at 409. 

Because this case is materially indistinguishable from Olivares–Pacheco, I 

would hold that the agents lacked reasonable suspicion for the stop that 

resulted in Cervantes’s conviction, and I would vacate his conviction and 

sentence.

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As elaborated below, the majority opinion stumbles in two important 

respects. First, the opinion does not give the substantial 200-mile distance of 

the stop from the border the paramount weight this factor warrants under our 

case law. 200 miles is a substantial distance that significantly undercuts the 

vital element of the Brignoni-Ponce test: whether the car had come from the 

border. Second, the majority opinion attributes suspiciousness to safe driving 

in the circumstances. 

I. PROXIMITY TO THE BORDER IS A PARAMOUNT FACTOR, 

AND 200 MILES FROM THE BORDER WEIGHS HEAVILY 

AGAINST REASONABLE SUSPICION

We weigh the eight factors outlined by the Supreme Court in United 

States v. Brignoni-Ponce, 422 U.S. 873 (1975) to determine if border patrol 

agents on roving patrol had reasonable suspicion to stop a vehicle. United 

States v. Garza, 727 F.3d 436, 443–44 (5th Cir. 2013), cert. denied, 134 S. Ct. 

1346 (2014). These factors include:

(1) proximity to the border;

(2) known characteristics of the area in which the vehicle is 

encountered; 

(3) usual traffic patterns on the particular road;

(4)the agent’s previous experience in detecting illegal activity; 

(5) information about recent illegal trafficking in aliens or 

narcotics in the area; 

(6) particular aspects or characteristics of the vehicle; 

(7) behavior of the driver; and

(8)the number, appearance, and behavior of the passengers.

United States v. Zapata–Ibarra, 212 F.3d 877, 881 (5th Cir. 2000) (citing 

United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999)).

These factors are not entitled to equal weight. This Court has repeatedly 

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stated that “[t]he first factor, proximity to the border, is a ‘paramount factor’ 

in determining reasonable suspicion.” Orozco, 191 F.3d at 581; accord Garza, 

727 F.3d at 441; Zapata–Ibarra, 212 F.3d at 881. “[A] vital element of the 

Brignoni-Ponce test is whether the agent had ‘reason to believe that the vehicle 

[in question] had come from the border.’ ‘[T]his element [is] . . . missing where 

the stop has occurred a substantial distance from the border.’” United States v. 

Garcia, 732 F.2d 1221, 1223 (5th Cir. 1984) (second alteration in original) 

(emphasis added) (quoting United States v. Lamas, 608 F.2d 547, 549 (5th Cir. 

1979)).

The “paramount” proximity-to-the-border factor weighs so heavily in the 

reasonable-suspicion analysis that, if the distance from the border is as 

substantial as in this case, we examine the remaining seven factors and the 

evidence charily, with skepticism toward the Government’s justification for the 

stop. See Olivares–Pacheco, 633 F.3d at 409 (“Proximity to the border is a

‘paramount factor,’ and, again, we must look at the other evidence charily if 

such proximity is not present.”).

The majority opinion errs by not giving this paramount factor the 

consideration it warrants under our case law. We have been skeptical toward

border patrol agents’ justification of reasonable suspicion this far from the 

border for good reason: Upholding a border-patrol stop on these facts—

changing lanes behind a 18-wheel semi-truck, slowing to match that truck’s 

speed, and not looking at a honking car to your left this far from the border—

could subject millions of safe drivers to potential privacy intrusions.1 Major 

 

1 The border patrol’s own authorizing statute and regulations provide that “100 . . . 

miles from [the] external boundary of the United States” is a “reasonable distance” within 

which border patrol agents are authorized to conduct roving patrols to prevent illegal entry. 

8 U.S.C. § 1357(a)(3) (authorizing border patrol agents to conduct roving patrols within a 

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cities that no one would consider “border cities,” such as Los Angeles, San 

Antonio, and Phoenix are all closer to the U.S.–Mexico border than Penwell, 

Texas and this particular stretch of Interstate-20. The overwhelming majority 

of drivers headed eastbound on the Interstate in these metropolises have not 

crossed the U.S.–Mexico border during their journeys, and many—if not 

most—of these drivers have changed lanes behind a slow, 18-wheel semi-truck 

to allow a faster moving car to pass on the left.

II. EXAMINING THE EVIDENCE AND REMAINING FACTORS 

CHARILY, AS WE MUST, THE OFFICERS LACKED

REASONABLE SUSPICION TO STOP THE CAR

Examining the factors and evidence skeptically, I would hold that the 

border patrol agents lacked reasonable suspicion to stop the car. Cervantes 

was driving eastbound on Interstate-20. The officers checked the car’s 

registration before stopping the car and determined that the car was registered 

in Morton, Texas. Thus, the direction that the car was travelling would have 

taken the car toward Morton, which is north of Odessa. This fact undercuts the 

agents’ basis for the stop. See Olivares–Pacheco, 633 F.3d at 404–05 (rejecting

the agents’ justification in part because “the vehicle was registered . . . in the 

greater Dallas area, wholly consistent with the truck’s direction”). Moreover, 

the stop occurred at about 8:30 a.m. on a Wednesday, not in the dark of night. 

This fact also cuts against reasonable suspicion. See id. at 405 (rejecting the

agents’ justification in part because the stop “occurred on a Monday at 10:30 

A.M., not in the dark of night”). Cervantes’s SUV also did not appear dirty or 

covered in brush—which would have been consistent with having “gone off 

road”—a fact that also weighs against suspicion.

 

“reasonable distance” of the border); 8 C.F.R. § 287.1(a)(2) (defining “reasonable distance” to 

mean 100 miles); see also Brignoni–Ponce, 422 U.S. at 877.

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There are facts that support the border patrol agents’ suspicion in this 

case as well. The agents testified that Cervantes’s SUV was driving on an 

alien-smuggling route and appearing to carry a heavy load. The SUV contained 

one driver and five passengers, even though there were only enough seatbelts 

to accommodate one driver and four passengers (one passenger was seated in 

the cargo area). Four of the occupants appeared to be “dirty.” From this, the 

experienced officers—Agent Collier has sixteen-plus years’ experience as a 

border patrol agent, and Agent Ramirez has eleven-years’ experience—

suspected illegal alien smuggling.2

On balance, however, these facts and the totality of the circumstances do 

not establish reasonable suspicion. The most important factor—proximity to 

the border—weighs against reasonable suspicion because the stop occurred 

more than 200 miles from the border. See Olivares–Pacheco, 633 F.3d at 402, 

409; Orozco, 191 F.3d at 581. Though we view the evidence in the light most 

favorable to the Government, we also must examine the remaining factors with 

skepticism this far from the border. See Olivares–Pacheco, 633 F.3d at 409. As 

elaborated below,3 Cervantes’s driving behavior was safe, not suspicious. He 

was driving toward the city in which the car was registered at 8:30 a.m. on a 

weekday morning. The SUV showed no indication of having recently driven offroad. Although the car appeared heavily loaded and had one more passenger 

than available seatbelts, travelling with multiple occupants in an SUV is not 

 

2 The Government also points to inconsistent attire as a factor supporting reasonable 

suspicion: the driver and front passenger wore short sleeves, whereas the rear passengers 

wore jackets. But there is no reason to believe that wearing jackets on an October morning 

near Odessa, Texas is suspicious. According to the Farmer’s Almanac, the low temperature 

that day was 57 degrees. Common sense dictates that some passengers in the back wearing 

jackets—as opposed to passengers wearing short sleeves in the front of the vehicle—on a fall 

morning at 8:30 a.m. near Odessa is consistent with comfort and style preferences, not alien 

smuggling. 3 See infra Part II(C).

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suspicious. Olivares–Pacheco, 633 F.3d at 405 (concluding that “the number of 

persons in the truck—six—was neither illegal nor excessive”). 

Finally, although in the past this Court has accepted testimony that this 

part of I-20 is an alien-smuggling corridor as supportive of reasonable 

suspicion, we have more recently given this factor minimal weight on this 

particular stretch of highway. Id. We reasoned that “the overwhelming 

majority of the traffic on this stretch of I-20 is unquestionably legal and the 

government has not shown that aliens are more or less likely to use Interstates 

than back roads.” Id. The same applies here because, as in Olivares–Pacheco, 

the Government does not point to evidence in this case establishing that alien 

smugglers are more likely to use Interstates than backroads. 

A. The Driving Behavior Was Lawful and Safe, Not Suspicious

The majority opinion errs by ascribing suspiciousness to safe and lawful 

driving behavior. Of course, as the majority opinion notes, “[f]actors that 

ordinarily constitute innocent behavior may provide a composite picture 

sufficient to raise reasonable suspicion in the minds of experienced officers.”

Olivares–Pacheco, 633 F.3d at 402 (internal quotation marks omitted).4 And 

the Supreme Court has rejected a “divide-and-conquer analysis” for assessing 

reasonable suspicion, noting that factors which by themselves may be “quite 

consistent with innocent travel” may collectively amount to reasonable 

suspicion. United States v. Arvizu, 534 U.S. 266, 274–75 (2002) (quoting, in a 

parenthetical, United States v. Sokolow, 490 U.S. 1, 9 (1989)).

But we have also held that facts that are consistent with alien smuggling 

do not provide reasonable suspicion if those factual conditions also occur even 

more frequently in the law-abiding public. United States v. Rangel–Portillo, 

 

4 Ante at 5.

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586 F.3d 376, 387 (5th Cir. 2009) (citing United States v. Chavez–Chavez, 205 

F.3d 145, 148 (5th Cir. 2000)). Rangel–Portillo illustrates how innocuous facts 

considered together as part of the totality of the circumstances may not support 

reasonable suspicion. There, we confronted a similar scenario; however, the 

stop occurred much closer to the border—just 500 yards away. See id. at 378.

As in this case, there, the border patrol agents stopped a Ford Explorer SUV 

fully loaded with passengers. Id. The SUV pulled into a Wal-Mart parking lot 

in Rio Grande City, Texas that was well-known for alien and drug smuggling. 

Id. The SUV contained three passengers in the back seat, and the driver “made 

eye contact” with the agent but the backseat passengers “avoided eye contact, 

were ‘stone-faced,’ . . . looked straight forward,” and “were sweating.” Id. The 

district court denied the motion to suppress based on, inter alia, the fact that 

the SUV passengers “failed to converse with one another and sat rigidly,” the 

absence of shopping bags in the SUV, the sweaty appearance of the passengers, 

and the fact that the rear passengers wore seatbelts. Id. at 379. We reversed 

and vacated the conviction and sentence. Id. at 383.

We stated that “there is no rational reason to conclude that law-abiding 

citizens are less likely to wear their seatbelts or exit a Wal-Mart parking lot 

sans shopping bags” than someone smuggling aliens or contraband. Id. at 381. 

We rejected the Government’s invitation to defer to the agent’s expertise in 

recognizing reasonably suspicious behavior and explained: “Individuals do not 

shed their constitutional rights with the click of a seatbelt.” Id.

1. Allowing a Car to Pass on the Left Is Not Suspicious

Just as individuals do not shed their constitutional rights with the click 

of a seatbelt, individuals do not also shed their constitutional rights by 

changing lanes on a two-lane highway to allow a fast-approaching car to pass 

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on the left.5 Agent Ramirez testified that he rapidly accelerated his patrol car 

to catch up to Cervantes. In response to a fast approaching car in the left lane, 

Cervantes naturally changed lanes to the right lane and slowed down to match 

speed with a slow moving 18-wheel semi-truck. As in Rangel–Portillo, “there is 

no rational reason to conclude that law-abiding citizens are less likely” to 

change lanes in this manner than someone smuggling aliens or contraband. 

See 586 F.3d at 381.

2. Failing to Acknowledge Horn Honking Does Not Create 

Reasonable Suspicion in These Circumstances

The border patrol agents also attempt to justify their suspicion by 

pointing out that, after they pulled into the left lane beside the SUV—boxing 

in Cervantes with the big-rig truck close in front—they honked their horn six 

times and Cervantes did not look over.

The horn honking does not contribute to reasonable suspicion. This does

not appear to be a technique these agents have found, based on their training 

and experience, to be indicative of criminal activity afoot. Agent Collier could 

not say whether it is “unusual for someone to ignore . . . honking of a car.” On 

cross-examination, Agent Collier admitted: “[Border Patrol] have not used 

[horn honking] a whole bunch. . . . I have not honked the horn very many 

times.” There is also no case law supporting the proposition that failing to heed 

the honking of an adjacent car’s horn is inherently suspicious.6 Considering 

 

5 Indeed, in Texas, remaining in the left lane is often against the law—supporting 

reasonable suspicion for a traffic stop. E.g., Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. 

App. 2013).

6 In Orozco, we observed that the district judge had noted that a border patrol agent 

honked at the driver as part of the district court’s reasons for denying a motion to suppress 

evidence discovered as a result of a border-patrol stop. 191 F.3d at 582. We suggested that 

this factor did not contribute to reasonable suspicion, noting that “some of the factors relied 

on by the trial judge” were inappropriate. Id. at 582–83. We nonetheless affirmed the denial 

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that Cervantes’s car was following a 18-wheel semi-truck at speeds 

approaching 70 miles per hour, boxed in by a border patrol car to his left and 

the shoulder to his right, the totality of the circumstances indicate that it was 

reasonable—even advisable—for Cervantes to keep his eyes on the road. 

Additionally, this Court has repeatedly rejected border patrol agents’

conclusions drawn from eye contact when asked to evaluate the reasonableness 

of a border-patrol stop. See, e.g., Olivares–Pacheco, 633 F.3d at 403 (“The 

avoidance of eye contact . . . is not entitled to any weight.”); Rangel–Portillo, 

586 F.3d at 381 (same); see also Chavez–Chavez, 205 F.3d at 149 (“Whether a 

driver looks at an officer or not should not be accorded much weight.”).

3. Context Matters in Assessing the Totality of the Circumstances

Deceleration and failure to acknowledge a law-enforcement vehicle may

reasonably be suspicious in some circumstances—but the context matters. 

Courts have agreed with law enforcement that such behavior is suspicious on 

secluded roads, but not necessarily on busy highways. See, e.g., Arvizu, 534 

U.S. at 275–76 (“We think it quite reasonable that a driver’s slowing down, 

stiffening of posture, and failure to acknowledge a sighted law enforcement 

officer might well be unremarkable in one instance (such as a busy San 

Francisco highway) while quite unusual in another (such as a remote portion 

of rural southeastern Arizona).” (emphasis added)). Here, there is no evidence 

in the record that I-20 outside of Midland–Odessa during rush hour on a 

Monday morning is similar to a remote portion of rural southeastern Arizona. 

On the contrary, the agents testified that during this time of day, this portion 

of I-20 experiences heavy traffic from oil-field workers headed to work. 

The totality of the circumstances here—a two-lane highway with a fast-

 

of the motion to suppress based on the totality of the circumstances and not on one factor 

alone. Id.

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approaching car in the left lane and a slow-moving 18-wheel semi-truck in the 

right lane—indicate that Cervantes was driving safely and not suspiciously. 

The majority opinion errs by accepting the border patrol agents’ attempt to 

justify reasonable suspicion based on Cervantes’s driving behavior in isolation, 

even though law-abiding citizens are just as likely to drive as Cervantes did in 

these circumstances. See Rangel–Portillo, 586 F.3d at 381.

B. Case Law Illustrates Why Reasonable Suspicion Is Lacking Here

This case is materially indistinguishable from Olivares–Pacheco. As in 

this case, in Olivares–Pacheco, we assessed a border-patrol stop of a vehicle 

travelling on the same stretch of highway, in the same direction, and at the 

same time of a weekday. 633 F.3d at 401–02. We explained that “the fact that 

Olivares–Pacheco was nowhere near the border makes our decision a much 

easier one. Indeed, of the cases in which the vehicle was stopped far from the 

border, the articulated reasons for suspicion were far greater than in the 

instant case.” Id. at 406, 409 (referring to Orozco and Morales among other 

cases). Not only did we reverse the district court’s denial of the defendant’s 

motion to suppress, we said the case was not particularly close: “We are 

satisfied that, if we were to side with the government in this case and affirm 

the district court’s denial of the defendant’s motion to suppress, we would be 

doing so on the barest articulation of facts that we have ever credited as 

constituting reasonable suspicion.” Id. at 409 (emphasis added).

Moreover, the majority opinion’s reliance on Orozco and United States v. 

Morales, 191 F.3d 602 (5th Cir. 1999) is misplaced, and the striking differences 

between those cases and this one illustrate why the agents lacked reasonable 

suspicion here. In both cases, the circumstances were far more suspicious than 

this case. In Orozco, unlike in this case, the arresting officer testified that he 

had personally apprehended twenty loads of illegal aliens in the same area in 

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the previous five months and knew that a majority of the transporters of aliens 

passed through this particular stretch of I-20 on weekends between 9 a.m. and 

10 a.m.—precisely the same time that the defendant was stopped. 191 F.3d at 

582. The agent testified that he “noticed that the truck bed was completely 

covered by a tarp,” and that “the spare tire was placed in the back seat of the 

truck as if to make room for a large amount of cargo in the bed of the truck,” 

both of which are “common technique[s] employed by smugglers to hide illegal 

aliens.” Id. Facts like these are entirely missing in this case. Further, the 

observed driving behavior in Orozco was objectively erratic: “the truck was 

weaving and bouncing on the road.” Id. And unlike the agents’ vague testimony 

of “sagging in the rear” in this case, the agents in Orozco specifically testified 

that they observed “that the tires were under inflated—suggesting the truck 

bed was carrying a heavy cargo.” Id.

Morales is also a far cry from this case. The vehicle in Morales bore the 

hallmarks of an alien-smuggling truck: the agent testified that “[t]he pickup 

truck had a fiberglass cover over the truck bed,” and that “the cover was almost 

flush with the top of the sides around the bed.” 191 F.3d at 605, 607. The border 

patrol agent further testified that, based on his experience, “he knew that 

approximately 30 persons could be hidden under the cover.” Id. at 607. Again, 

unlike in this case, the driving behavior was objectively erratic: the truck was 

observed “weaving back and forth across the [lane] line.” Id. at 605. In contrast 

to the vague testimony in this case of “sagging,” the Government developed 

record evidence of particular articulable facts to support their suspicion. The 

border patrol agent in Morales testified that he ingeniously positioned himself 

at a particular spot near a bump in the roadway. Id. at 606–07. The agent 

testified that he had “encountered ways that [smugglers] have tried to hide [a 

heavy load]. They put 2X4s in the springs and so on and so forth. But when 

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they do that, the vehicle hits [the bump] solid. It doesn’t bounce.” Id. at 607. 

The border patrol agent observed this phenomenon and noted that the tires 

were underinflated, id. at 605, and he articulated these observed facts at the 

suppression hearing. We credited that the agent had drawn “rational 

inferences from those facts”—that the truck was heavily loaded—and “was able 

to form the requisite suspicion” to lawfully stop the car. Id. at 607.

This case is perhaps a closer one than Olivares–Pacheco—due to the 

agents’ observation that the passengers appeared dirty and the SUV was 

“sagging in the rear.”7 But because of the absence of the kind of observed, 

articulable facts that we credited in Morales and Orozco as supporting the 

credible inference that a truck was heavily loaded with illegal aliens or 

contraband, I would conclude that Olivares–Pacheco is materially 

indistinguishable from this case and would reverse.

III.CONCLUSION

For the foregoing reasons, I would hold that the border patrol agents 

lacked reasonable suspicion to stop Cervantes’s car, and I respectfully dissent.

 

7 But see Olivares–Pacheco, 633 F.3d at 401 (“[T]he agents observed that [the truck] 

was dragging some brush.”). Additionally, a flatbed truck has been recognized in our case law 

as more consistent with alien and drug smuggling than an SUV with passengers visibly 

seated in the back. See, e.g., Morales, 191 F.3d at 605.

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