* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED May 3, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-51334 Summary Calendar

UNITED STATES OF AMERICA, Plaint iffAppellee,

versus JOSE INES SALAZAR, DefendantAppellant.

-------------------------------------------------------------- Appeal from the United States District Court fo r the Western District of Texas USDC No. 2:04-CR-156-1

-------------------------------------------------------------- Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. PER CURIAM: * Jose Ines Salazar appeals th e denial of his mo ti on to suppress after condi tionally pleading guilt y to tr ansporti

ng an illegal alien for commercial advantage or private financial gain. Salazar argues that Border Patrol agents Shawn Hilt z and Samuel Arredondo did not have reasonablesuspicion that his vehicle was invo lved in criminal acti vit y sufficient to justify th e traf fic stop that led to his arrest. A Border Patrol agent conducting a rovi ng patrol may stop a vehicle for purposes of a tem porary invest igation “if the officer’s action is supported by reasonable suspicion to b elieve that criminal activit y may be afo ot.” U nited States v. Arvizu , 534 U.S. 266, 273 (2002) (i nt ernal quotatio n marks om

it ted). We review the district court’s reasonable suspicion determination de novo, U nited States v. Jacquinot , 258 F.3d 423, 427 (5th Cir. 2001). F a ctors that “may be” considered in the reasonable suspicion analysis include:

(1) proximity to th e border; (2) characteristics of the area; (3) usual traf fic patterns; (4) agent’s previous experience in detecting illegal activity ; (5) behavior of the driver; (6) particular aspects or characteristics of th e vehicle; (7 ) info rmation about recent illegal traf ficking in aliens or narcotics in th e area; and (8) the number, appearance, and behavior of the passengers. Jacquinot , 258 F.3d at 427 (citing United States v. Brignoni-Ponce , 422 U.S. 873, 884-85 (1975)). Salazar asserts that th e district court erroneously ruled that his vehicle was clo se to the border by measuring th e vehicle’s direct distance from the border inst ead of it s distance from th e border by road. We need not decide here whether distance from the border should be measured directly or by road because, even examining th e remaining factors charily, th e totalit y of th e circumstances support th e district court’s determ inat io n that reasonable suspicion did exist. See United States v. SalazarMartinez , 710 F.2d 1087, 1088 (5th Cir. 1983)

. The district court p roperly r elied upon the following facts in concluding that there was reasonable suspicion: Salazar was traveling on Highway 85, a com mo n smuggling route that avoids immigrat io n checkpoints, shortl y aft er midnight ; Agent Hilt z did not recognize the vehicle as a lo cal vehicle; and th e registration check on Salazar’s vehicle revealed that it was registered near Dallas.See Jacquinot , 258 F.3d at 429; United States v. Villalobos , 161 F.3d 285, 289 (5th Cir. 1998).

Agent Hiltz had five years of experience as a Border Patrol agent in the area. See United States v. Cardona , 955 F.2d 976, 978, 981 (5th Cir. 1992). Salazar was driving well below the speed limit, applied his brakes rapidly when he fir st encountered th e agents’ marked patrol vehicle, slo wed down and pulled to the side of th e road to allo w the agents to pass, and fell further back when the agents slo wed d own to al lo w him t o pass. S ee Jacquinot , 258 F.3d at 429; Villalobos , 161 F.3d at 291

. Salazar’s vehicle was a newer mo del Suburban wit h darkly ti nt ed windows and excessive visible condensation despite contai ning only two visible occupants. S ee United States v. Garcia , 732 F.2d 1221, 1225 (5th Ci

r. 1984) (heavy condensation); V illalobos , 161 F.3d at 289-90 (darkly ti nt e d windows); Salazar-Martinez , 710 F.2d at 1088 (large vehicle). Given th e characteristics of th e area, the usual traf fic patterns, Agent Hilt z’s experience in the area, th e dri

ver’s behavior, and the characteri stics of the vehicle, the totality of the circumstances supported the district court’s finding of reasonable suspicion, even if th e proximity to th e border factor was not sati sfied. S ee United States v. Aldaco , 168 F.3d 148, 152 (5th Cir. 1999). Salazar’s argument that each of th e circumstances supporting the reasonable suspicion finding are equally consistent wit h inno cent behavior as they are wit h criminal acti vit y is tantamount to th e “divide and conquer” strategy that has been rejected by th e Supreme Court. S ee Arv izu , 534 U.S. at 273-76. Salazar has failed to show that th e agents were predisposed to stop any vehicle traveling on Highway 85. S ee United States v. Inocencio , 40 F.3d 716, 7 23 (5th Cir. 1994). Furthermore, Salazar’s contention regarding the subjective motivation of the agents is misplaced because the reasonable suspicion determ

inat io n depends upon the objective facts known to th em at the ti me of th e stop, not th eir subjective mo ti

vation fo r making the stop. S ee United States v. Melendez-Gonzalez , 727 F.2d 407, 412 (5th Cir. 1984). The district court did not err by denying the motion to suppress.AFFIRMED.