* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 20 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. REFUGIO GOMEZ-ESPINOZA; MAX MENDOZA,

Defendants - Appellants. No. 97-2302 & 97-2321 (D. Ct. Nos. CR-96-610-BB) (D. N. Mex.)

ORDER AND JUDGMENT *

Before TACHA , BALDOCK , and KELLY , Circuit Judges.
Following their indictments for conspiracy and poss ession with intent to distribute more than 100 kilograms of marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, the defendants separately moved to suppress the marijuana that United States BorderPatrol agents discovered in the gas tanks of four pickups the defendants and ot hers were driving near the New Mexico-Mexico border. The district court denied th eir motions. The defendants- 2 -

subsequently pleaded guilty while reserving their r ight to appeal the denial of their motions to suppress. They pursue that appeal here. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. The sole question presented by this appeal is wheth er the district court properly held that Border Patrol agents had reasonable suspicion to stop a convoy of four nearly identical pick-up trucks near the Ne w Mexico-Mexico border. On September 28, 1996, Border Patrol Agent Jose Alv arado was traveling northwest along I-10 from El Paso, Texas to Las Cru ces, New Mexico. Agent Alvarado had been stationed in Las Cruces for aboutsix years. During that time, he made at least 80 drug arrests. Just south of La s Cruces, I-10 turns due west towards Arizona and California. At that point, I-2 5 begins and continues the northbound path that I-10 follows from El Paso toward Las Cruces. There are permanent Border Patrol checkpoints on both I-25 no rth of Las Cruces and I-10 west of Las Cruces that lie in the territory that A gent Alvarado patrols. Because the I-10 checkpoint is often unmanned, I-10 is comm only used by drug smugglers to circumvent the more frequently manned checkpointalong I-25. At about 1:00 p.m., approximately five miles south of Vado, New Mexico, Agent Alvarado spotted two pick-up trucks traveling northwest along I-10 toward Vado. Vado is about fifteen miles north of the bor der and about ten miles south of Las Cruces. The first truck was a tan Chevroletpick-up truck with California- 3 -

license plates. In front of the tan truck was a si milar white Chevy pick-up also with California plates. According to Agent Alvarad o’s testimony, Chevy pick-up trucks are commonly used to smuggle drugs through c heckpoints. He suspected that the two trucks were traveling in tandem. He a lso suspected that the first truck was acting as a “scout” for the second one. According to Agent Alvarado, drug smugglers often use “scout cars” to determine whether checkpoints are manned or if a drug-sniffing dog is present. The s cout then advises the driver of the cars loaded with contraband (i.e., the load car s) to proceed into the checkpoint, sit and wait, or turn around. The two trucks stayed together, keeping a constant distance of five to seven car lengths between them. According to Agent Alvar ado, drug smugglers often keep such distances from each other so as not to dr aw attention to themselves. At the point where I-10 and 1-25 meet, both trucks hea ded westbound on I-10. Agent Alvarado continued to follow the trucks, “sus pect[ing] that if the vehicles indeed were carrying contraband, that they would ex it at the Love’s exit, a truck stop.” Tr. at 41. The Love’s truck stop is locate d in a remote desert area outside of Las Cruces, approximately twelve miles east of t he I-10 checkpoint, and about thirty miles west of Vado. According to Agent Alva rado’s testimony, Love’s is a common staging area used by smugglers to leave vehi cles loaded with drugs while a scout car goes to the checkpoint to see whether i t is manned. At the truck stop,- 4 -

both vehicles gassed up. Agent Alvarado noted thatdrug smugglers commonly hide drugs in gas tanks, thus limiting the amount o f gas their tanks can hold and requiring them to refuel frequently. After refueli ng and parking their cars, the drivers of the two trucks walked over to a third Ch evy pick-up truck. The drivers of the three trucks talked to one another. Soon th ereafter, a fourth Chevy pick-up pulled into the parking lot. This truck was white and had Chihuahua, Mexico license plates. According to Agent Alvarado, the d river “squealed his tires as he came to a halt.” Tr. at 46, 102, 107. He then wal ked over to where the other drivers were talking and he gestured to them to fol low him. Agent Alvarado testified that he thought the fourth truck could have just completed a scouting run to the I-10 checkpoint. Agent Alvarado radioed for backup and followed behi nd two of the trucks. The other two pick-up trucks drove behind him. App roximately 40 miles west of the Love’s truck stop, at mile marker 93, Agent Alv arado stopped the two trucks that he was following. He was soon joined by back- up units, one of which then left in pursuit of the remaining two Chevys. Defen dant Gomez-Espinoza was the driver of one of the two vehicles that Agent Alvara do had stopped. Five miles down the road, at mile marker 88, New Me xico State Police Officer Robert Santana stopped the other two trucks , one of which Defendant Max Mendoza was driving. Officer Santana had with him a drug-sniffing dog.- 5 -

Mendoza and the driver of the other truck consented to have Officer Santana inspect their trucks with the dog. The dog alerted to the gas tanks of both trucks. Soon thereafter, Agent Alvarado arrived at mile mar ker 88 with the first two trucks that had been stopped and their occupants. Defendant Gomez-Espinoza consented to have his truck inspected by the dog, w hich alerted to the gas tank. The agents placed the defendants under arrest and s earched the trucks. They discovered a total of 546 pounds of marijuana hidden within the gas tanks of the four trucks. The defendants separately moved to suppress the mar ijuana on the ground that the agents lacked reasonable suspicion to stop them. The district court denied their motions, ruling from the bench. In re viewing a decision on a motion to suppress, we review the district court’s ultimat e determination about reasonable suspicion de novo , though we review the court’s factual findings for clear error, giving due weight to the inferences dr awn therefrom by the district
court. See United States v. Barron-Cabrera , 119 F.3d 1454, 1457 (10 thCir. 1997). We view the evidence in the light most favorable to the district court’s findings.
See id. It is well established law that border patrol agent s on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with the rational inferences therefrom, that reasonably warr ant suspicion that the vehicles- 6 -

are involved in criminal activity. See United States v. Brignoni-Ponce , 422 U.S. 873, 884 (1975); United States v. Martinez-Cigarroa , 44 F.3d 908, 910 (10 thCir. 1995). To determine whether a stop was based on re asonable suspicion, we employ a totality-of-the-circumstances approach. S ee United States v. Sokolow , 490 U.S. 1, 8 (1989). Under that approach, we cons ider whether the articulated facts in the aggregate support the stop. See id . at 9. Even if each fact alone is not proof of illegal activity, when considered toge ther, the facts may nonetheless amount to reasonable suspicion. See id. The issue here, then, is whether Agent Alvarado’s rational inferences from all the facts h e had before him justified his decision to pull over the trucks. Border patrol agents may properly consider the foll owing factors in determining whether there exist facts that reasonab ly warrant suspicion of criminal activity: (1) the physical characteristics of the geographic area in which the vehicle is stopped, (2) traffic patterns on the road, (3) proximity to the border, (4) previous experience with illegal activity in th e area, (5) information about recent border crossings, (6) attempts to evade dete ction, (7) appearance of the vehicle, (8) appearance and behavior of the driver and passengers, and (9) other relevant information. See United States v. Pollack , 895 F.2d 686, 690 (10 thCir. 1990) (quoting United States v. Lebya , 627 F.2d 1059, 1062-63 (10th Cir. 1980)). Given these factors and this circuit’s caselaw, and considering the facts with- 7 -

which Agent Alvarado was faced and his many years e xperience in the field, we agree with the district court that under the totali ty of the circumstances, the stop of the Chevy trucks was based upon reasonable suspi cion. The facts here are not appreciably less suspicious than those presented inUnited States v. Pollack , United States v. Cantu , 87 F.3d 1118 (10 thCir. 1996), or United States v. LeosQuijada , 107 F.3d 786 (10 thCir. 1997). For example, in Pollack , we held that border patrol agents had reasonable suspicion to stop the driver of a suspected load ca r. There, the driver of a pick-up truck came through a border patrol checkpoint along I-25 early in the morning and asked for directions to the nearest filling station . Forty-five minutes later, agents detected the pick-up on another highway traveling c lose to a Buick sedan that seemed to be riding low in the rear. The highway w as seldom traveled and it circumvented the border patrol checkpoint on I-25. After agents stopped both vehicles, they searched and found marijuana in the trunk of the Buick. See Pollack , 895 F.2d at 692. In this case, each fact taken alone seems relativel y innocent. Taken together, however, the conduct of the four pick-up trucks breeds suspicion. Most suspicious was the fact that four, nearly identical , out-of-state Chevy pick-up trucks rendez-vous ed at a desert truck-stop only ten miles east of a border patrol checkpoint. When the fourth pick-up arrived at Lov e’s truck-stop, the driver- 8 -

rounded up the other drivers and they quickly heade d west on I-10 towards the checkpoint. Agent Alvarado recognized this rendez-vous as characteristic of scouting activity used in smuggling contraband. Fu rthermore, pick-up trucks are often used, because of their size, to smuggle drugs . The truck stop where all the trucks stopped is reportedly known to be a frequentmeeting place for drug and alien smugglers, and the entire geographic area jus t north of the Mexican border is known for extensive alien and drug smuggling. A gent Alvarado had observed the first two pickups during his drive from El Paso , along the Mexican border. Agent Alvarado testified that most of the drugs smu ggled into southern New Mexico come from Juarez, a Mexican city just across the border from El Paso. Indeed, one of the four trucks had Mexican license plates. All of the pickups drove a stretch of highway known for its limited tr affic and known as an avenue to bypass the more frequently manned checkpoint on I-25. These factors, when considered in the aggregate, gave rise to a reasona ble suspicion justifying stopping the four trucks.
AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge