1 US 83 and I-35 merge in Laredo but split about 20 miles north of the

city. “Intersection” refers to this northern split.

United States Court of Appeals

Fifth Circuit

FILED

January 24, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41611

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROSA MARIA HERNANDEZ,

Defendant-Appellant.

______________________

Appeal from the United States District Court

for the Southern District of Texas

______________________

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendant Rosa Hernandez argues that no reasonable suspicion

supported the stop of her car by a roving patrol approximately

eighteen miles from the Rio Grande. We affirm.

I

The Laredo North Border Patrol Station is located 15 miles

north of Laredo on I-35, south of the intersection of I-35 and US

83.1 US 83, a mostly north-south road, is a notorious alien

smuggling route; aliens follow ranch or county roads or walk about

six hours through the desert from the Rio Grande, approximately
2 The origins of the tip and the relay to the patrols are unclear. The

significant fact is that the tip was directed to the Laredo North Checkpoint

facility.

2

eighteen miles away, for pickup by smugglers on US 83, north of any

checkpoint.

Border Patrol Agent Nicholas Lopez spent his 17-year career at

the Laredo North Station doing roving patrols along US 83. Between

3:00 p.m. and 11:00 p.m. on Sunday, January 30, 2005, he and a

partner were on roving patrol. Agent Antonia Parra, with twoyears’ experience on such patrols, was on similar patrol in a

different area with his partner. These roving patrols also lay up

where aliens might join smugglers, track the brush, and respond to

tips.

At about 8:45 p.m., an anonymous tipster called the Laredo

North Checkpoint facility, out of which the roving patrols were

based, and reported that two vehicles, a red Suburban and a red

pickup truck, had just stopped at the Long Branch Saloon on US 83,

picked up a load of illegal aliens, and headed north. The Saloon

was a mile north of the intersection of I-35 and US 83. It was a

well-known rendezvous spot, with a nearby lay-up area often

littered with personal effects and food left by illegal aliens.

The tip was relayed over the radio.2 Lopez, who was driving south

on US 83 and had just passed the Saloon, turned around and headed

north toward the Saloon. When he reached it, he noticed four or

five vehicles in the parking lot, none matching the tipster’s
3 The relative locations of the stops by Parra and Lopez are unclear, but

they are irrelevant to this appeal.

3

description. He continued north, turning on his lights, as he

claims to alert other officers to his presence and to avoid being

stopped for speeding.

When Parra heard the call, he drove from a side road to US 83

and headed north himself.

3 After about three to five minutes, he

encountered a red Suburban driving north. The Suburban pulled over

and stopped on its own; Parra hadn’t turned on his light or

otherwise pulled the car over. Parra thought the occupant needed

assistance, so he pulled over and approached the car. He talked

with the driver, Esteban Herndandez-Ramirez, who offered no

explanation for pulling over and stopping. At Parra’s request,

Esteban produced his green card, and he told Parra that he was

returning from Laredo after dropping off his wife at a bus station.

He claimed that his wife was traveling by bus into Mexico and that

he was heading home back to Houston. Presumably there was no one

else in the car. Around this time, Parra ran a registration check

on the Suburban. Thinking Esteban’s explanation odd since I-35 was

a better route to Houston, Parra asked Esteban why he was on US 83.

Esteban claimed to have stopped to purchase a bag of chips. After

Parra’s supervisor, Agent Luis Jimenez, arrived on the scene,

Jimenez asked Esteban for his driver’s license. Jimenez checked

the license. When the registration came back clean, Esteban was

allowed to leave and Jimenez set out to join Lopez further north on
4

US 83. Parra also drove north.

While traveling north on US 83, Lopez passed two or three

cars, none of which were red or pickups, which moved to the

shoulder to allow Lopez to pass. About five to seven minutes and

ten miles since driving past the Saloon, about the same time that

Parra pulled over Esteban, Lopez encountered a red pickup. It too

pulled over, and Lopez pulled over behind it and approached. The

driver, defendant Rosa Hernandez, gave Lopez her green card. Lopez

found four illegal aliens in the pickup. Hernandez told Lopez that

she stopped at the Saloon parking lot when the four aliens

inexplicably jumped in her pickup. As Lopez was talking with

Hernandez, Jimenez arrived and Parra drove on past.

When Jimenez learned of Hernandez’s identity, he immediately

radioed to Parra, suspecting that Rosa and Esteban were married.

The two men discussed the issue. Jimenez told Parra to stop

Esteban. He did so, asking Esteban if Rosa was his wife and if

they were smuggling aliens. He admitted both. 

Esteban and Rosa were eventually charged with aiding and

abetting the transportation of two illegal aliens for financial

gain. The district court denied their motions to suppress, noting

especially that there was no evidence of other red trucks in the

area. After a bench trial, the district court found defendants
4 In her motion to suppress, Hernandez stated that the tipster said the

truck was maroon while her truck was red. In orally arguing that motion,

however, everyone, including Hernandez, said the tip identified a red truck.

Then just before trial, the parties stipulated that the tipster said the truck

was maroon. Neither party mentioned the discrepancy in its brief or at oral

argument, both referring the tip as about a red truck. Accordingly, we give the

discrepancy no significance.

5 We dismissed Esteban’s appeal after he failed to pay for the appeal or

seek in forma pauperis status. 

6 See United States v. Portillo-Aguirre, 311 F.3d 647, 651-52 & n.6 (5th

Cir. 2002).

5

guilty.4 The PSR recommended six to twelve months’ imprisonment

for both defendants, but Judge Alvarez sentenced them to only three

years’ probation with six months home detention. Rosa appeals.5

II

Where, as here, the facts are undisputed, we review de novo

the lower court’s legal conclusion that reasonable suspicion

supported the stop.6

Border Patrol agents on roving patrol may stop a vehicle

when they are aware of specific articulable facts,

together with rational inferences from those facts, that

reasonably warrant suspicion that the particular vehicle

is involved in illegal activity. See United States v.

Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574[]

(1975); [United States v. ]Villalobos, 161 F.3d [285,]

288 [(5th Cir. 1998)]. Factors that may be considered

include: (1) the characteristics of the area in which the

vehicle is encountered; (2) the arresting agent's

previous experience with criminal activity; (3) the

area's proximity to the border; (4) the usual traffic

patterns on the road; (5) information about recent

illegal trafficking in aliens or narcotics in the area;

(6) the appearance of the vehicle; (7) the driver's

behavior; and, (8) the passengers' number, appearance and

behavior. See Brignoni-Ponce, 422 U.S. at 884-85, 95

S.Ct. 2574. Reasonable suspicion requires more than a

mere unparticularized hunch, but considerably less than

proof by a preponderance of the evidence. See United

States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999). No
7 United States v. Ceniceros, 204 F.3d 581, 584 (5th Cir. 2000).

8 Id.

9 United States v. Perkins, 352 F.3d 198, 200 (5th Cir. 2003).

10 Alabama v. White, 496 U.S. 325, 327-29 (1990) (internal citations

omitted).

6

single factor is determinative; the totality of the

particular circumstances known to the agents are examined

when evaluating the reasonableness of a roving border

patrol stop. See United States v. Morales, 191 F.3d 602,

604 (5th Cir. 1999)[]; Villalobos, 161 F.3d at 288.

The characteristics of the area in which the vehicle was

encountered and the area's proximity to the border are

important considerations in the reasonableness

determination. See Villalobos, 161 F.3d at 288-89.

Proximity to the border has been recognized by this court

as a factor supporting reasonable suspicion, even when

the vehicle is more than the benchmark fifty miles from

the border. See Gonzalez, 190 F.3d at 672 (citing

Villalobos, 161 F.3d at 289). Close proximity to the

border is not required if other specific articulable

facts support a finding of reasonable suspicion. See

United States v. Aldaco, 168 F.3d 148, 150 (5th Cir.

1999).7

An anonymous tip may provide the reasonable suspicion.8

Factors to be considered are: “(1) the credibility and reliability

of the informant; (2) the specificity of the information contained

in the tip or BOLO report; (3) the ability of the officers in the

field to verify the information in the field; and (4) whether the

tip deals with active or recent activity.”9 “[A]n informant’s

‘veracity,’ ‘reliability,’ and ‘basis of knowledge’...[are] ‘highly

relevant in determining the value of his report.’”10

Hernandez notes that Lopez conceded that US 83 is a major

highway and that he noticed nothing suspicious about the vehicle
11 See United States v. Roch, 5 F.3d 894, 896 (5 Cir. 1993) (holding that

such a prediction shows reliability).

12 She compares her case to several others, arguing that her case presents

less suspicion than all of them. See White, 496 U.S. at 329 (holding that a tip

that White would be leaving a particular location in a particular car traveling

to a particular location was sufficient, although presenting a “close case”);

United States v. Jaquez,421 F.3d 338, 340 (5th Cir. 2005) (holding that a radio

dispatch about a “red vehicle” being involved in a shooting incident in a certain

area was insufficient to support the stop of a red car in that area fifteen

minutes later); United States v. Lopez-Gonzalez, 916 F.2d 1011 (5th Cir. 1990)

(finding reasonable suspicion based on a tip that two vehicles would begin at a

certain location near the river and travel a certain route, and agents saw that

occur after people loaded bales and sacks into the car before leaving);

Ceniceros, 204 F.3d at 585 (finding reasonable suspicion based on a tip that a

white 90s model Chevy Lumina would be traveling on Highway 118 from Lajitas,

Texas, driven by a lone hispanic male, and the agent, after seeing such a car,

ran the license plate and discovered that it was registered to a white woman in

Dallas, noticed no Big Bend National Park permit sticker, as many cars in that

area had, observed speed fluctuations and drift, suggesting concern about the

agent, and noticed that the car appeared to be heavily loaded in the back);

United States v. Roch,5 F.3d 894, 898 (5th Cir. 1993) (finding no reasonable

suspicion based on a tip from an informant reliable in the past that a white male

named Frank was driving an orange and white truck and staying at a certain hotel

with his girlfriend, and the police saw a white male leave the hotel with a white

7

itself or its passengers; she acknowledges that proximity to the

border is a factor, but she reminds that proximity isn’t

dispositive and argues it is less important where the defendant is

stopped in a populated area. Consequently, she argues, whatever

suspicion Lopez had came almost exclusively from the anonymous tip.

And that tip, she continues, was insufficient because it was too

vague. The argument continues that Lopez admitted that red cars

and trucks wouldn’t be unusual on US 83 or at the Saloon around

9:00 p.m., that nothing validated the tip: Lopez saw nothing

unusual at the Saloon, there was no prediction of future behavior,11

and there was no other corroboration. In short, she argues, Lopez

had only a bare tip about a red pickup and stopped the first red

pickup he encountered.12
woman in an orange and white truck). 

13 At oral argument, Hernandez contended that we could not rely on any

reliability stemming from this fact because Agent Lopez didn’t know what number

the tipster called. However, in assessing whether an agent had reasonable

suspicion, we look to the “collective knowledge” of all agents and officers. See

United States v. Ervin, 907 F.2d 1534, 1539 (5th Cir. 1990).

8

We conclude that reasonable suspicion supported the stop.

These events played out in an area close to the border and a

notorious alien smuggling route. Moreover, the tip itself was not

bare. The tipster call was a rifle-shot to the nearest checkpoint

facility, out of which the roving patrols were based, as opposed to

any other office in the Laredo Sector, suggesting familiarity with

the Border Patrol and knowledge and experience with reporting

illegal activity.13 The tipster claimed to have seen the smuggling

firsthand just moments before the call, and the Long Branch Saloon,

it will be recalled, was next to a well-known lay-up area for

illegal aliens, facts which point to a knowledgeable tipster.

There was more. The tip provided the color, number, and type of

the vehicles - a red truck and a red Suburban - and that

description was validated when Lopez encountered Hernandez. The

totality of the circumstances provided reasonable suspicion to stop

Maria Hernandez.

AFFIRMED.