UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-8085 __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNESTO RAMIREZ-LUJAN,

Defendant-Appellant.

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Appeal from the United States District Court for the Western District of Texas ______________________________________________

(October 23, 1992)

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges and WERLEIN,* District Judge.

GARWOOD, Circuit Judge:

Defendant-appellant, Ernesto Ramirez-Lujan (Ramirez), appeals

his conviction for possession of marihuana with the intent to

distribute. His sole challenge is to the admissibility of evidence

on the grounds that it was seized after an illegal initial stop by

a border patrol agent. Based on the circumstances surrounding the

seizure, we find that the evidence was admissible under the good

faith exception to the exclusionary rule and we affirm.

* District Judge of the Southern District of Texas, sitting by designation. Facts and Proceedings Below

Wesley Coleman (Coleman) worked as an agent for the border

patrol at the Desert Haven checkpoint, which is on Highway 62-180

about thirty-five miles from the Mexican border and twenty-five

miles east of El Paso, Texas. About three blocks west of the

checkpoint is a turnoff for Pinon Road. The checkpoint is well

marked and can be seen from the Pinon Road turnoff. Pinon Road is

a some thirty-five mile long unpaved road stretching from Highway

62-180 to Dell City, Texas.

Pinon Road is generally used as an access road for the few

families that live there or for drug and alien smuggling. For

nonlocals, it is a road to nowhere since only two ranches and a

pipeline are within ten or twenty miles of the turnoff from Highway

62-180. Pinon Road is known for alien and drug smuggling because

it allows people to proceed to Dell City, which has a reputation as

a drug distribution center, from Mexico while avoiding border

patrol checkpoints. It is impractical for a person acting lawfully

to use Pinon Road to get to Dell City since there is a much faster

paved highway via the checkpoint. The people who live or work in

Dell City get there by going through the checkpoint; they do not

use Pinon Road.

Coleman testified that he had some three years experience at

this location, that he was familiar with the families who lived on

Pinon Road within ten or twenty miles of the Highway 62-180 turnoff

and that he recognized their cars and the cars of most of their

employees. He added that Pinon Road is not used much by the Pinon

Road residents or their workers around 6:30 in the morning.

2 Sometimes the local people using Pinon Road would drive past the

Pinon Road turnoff to the checkpoint to check in with the border

patrol before proceeding on Pinon Road. Coleman stated that he has

a policy of stopping every car on Pinon Road that he does not

recognize.

At 6:30 a.m. on October 10, 1991, Coleman observed Ramirez

head east on Highway 62-180 and turn onto Pinon Road in a late

1970's model pickup truck, travelling a little fast on the dirt

road. Coleman did not recognize this vehicle as one used by the

ranchers or their guests. He decided to investigate.

The officer pursued Ramirez for about four miles. Though

trailing closely, Coleman could not identify the license plate

number because of the bumpy terrain. Coleman then turned on his

red flashing lights and Ramirez pulled over. Ramirez presented a

valid permanent resident alien's card. Ramirez appeared nervous

and stated that the truck did not belong to him. Coleman told

Ramirez to follow him to the checkpoint so he could verify

Ramirez's immigration papers since the terrain precluded radio

contact. At the checkpoint, the dog alerted that it smelled

contraband and the truck was searched. The search revealed a false

panel in the truck containing 308 pounds of marihuana.1

Ramirez filed a motion to suppress the fruits of this search,

which was denied following an evidentiary hearing. Ramirez was

convicted of knowingly and intentionally possessing over 100

1 The initial verification of Ramirez's documents suggested that the truck was stolen and that Ramirez was wanted. This information later proved false.

3 kilograms of marihuana with the intent to distribute in violation

of

(a)(1). He was sentenced to sixty-three months'

imprisonment and four years' supervised release.

Discussion

Ramirez contends that because the stop of his truck violated

the Fourth Amendment, the fruits of the stop should be suppressed

and his conviction overturned. The United States contends, as it

did below, that Coleman reasonably believed that Ramirez was

attempting to avoid the border patrol checkpoint and that the

evidence is admissible because the search was legal or because the

search was justified by the good faith exception.

Normally the fruits of illegal searches and seizures are not

admissible in the prosecution's case in chief under the

exclusionary rule. However, the "good faith exception" to the

exclusionary rule allows the admission of the fruits of some

illegal stops. Under this doctrine we have held that "evidence is

not to be suppressed . . . where it is discovered by officers in

the course of actions that are taken in good faith and in the

reasonable, though mistaken, belief that they are authorized."

United States v. De Leon-Reyna,

(5th Cir. 1991)

(en banc) (quoting United States v. Williams,

(5th Cir 1980), cert. denied,

(1981)). See also id.

at 402 (suppression inappropriate where "it would be objectively

reasonable for an experienced officer, situated as was" the officer

making the stop, "to conclude that there was adequate reasonable

suspicion under the Cortez [United States v. Cortez,

(1981)] standard and that it was hence lawful to stop the

4 vehicle.").

The issue on appeal is whether Coleman's initial stop of

Ramirez meets either the constitutional test of reasonableness or

the good faith exception so that the fruits of the search are

admissible. The nature of the stop determines the level of

justification required.

Border officers on roving patrol may stop a vehicle only if

they are aware of specific articulable facts that create a

reasonable suspicion that the vehicle contains illegal aliens or

drugs. United States v. Brignoni-Ponce,

(1975)

(aliens); United States v. Cortez,

(1981) (drugs

and other criminal activity); United States v. Lopez,

(5th Cir. 1990). Factors weighed in a reasonable

suspicion test include: 1) characteristics of the area; 2)

proximity to the border; 3) usual patterns of traffic and time of

day; 4) previous experience with alien or drug smuggling in the

area; 5) behavior of driver, including "obvious attempts to evade

officers"; 6) appearance or behavior of passengers; 7) appearance

of the vehicle; and 8) officer experience. See Brignoni-Ponce,

.

Border patrol officers may stop vehicles at checkpoints

without reasonable suspicion. United States v. Hasette,

(5th Cir. 1990). Temporary stops without reasonable

suspicion are also permitted in "u-turn" type situations where

people are seen making u-turns or similar maneuvers that avoid

their passing through visible border patrol checkpoints, because

the maneuver is treated as tantamount to a stop at the checkpoint

5 itself.

While these cases do not require reasonable suspicion

of criminal activity as such, they appear to be inferentially

grounded on the assumption that a u-turn type maneuver within sight

of the checkpoint being approached gives rise to the reasonable

suspicion that it is taken to avoid going through the checkpoint.2

In United States v. Casteneda,

(5th Cir. 1992),

this Court upheld a stop on Welhausen Road, a gravel road

notoriously used to avoid two border patrol checkpoints. In

Casteneda, the officer smelled a faint odor of marihuana coming

from the truck in front of him through the open window of his car.

The panel said that but for the smell of drugs, the stop was not

legal.

at 47 n.4.3 The opinion notes that "[w]ithout the

smell, nothing was unusual about Casteneda being on Welhausen

Road."

. So far as the opinion reflects, the officer did

not testify that he was familiar with the vehicles that regularly

used the road or that it was unusual for vehicles to be using the

road at 8:00 p.m. While used to avoid checkpoints, the turnoff

onto Welhausen Road could not be seen from the checkpoint and was

not so close to the checkpoint that turning onto the road could be

regarded as analogous to a u-turn. See

Although here there was no marihuana odor as in Casteneda,

other circumstances in this case justify application of the DeLeon-

2 In Hasette the defendant, driving toward the checkpoint, turned off the road into the entrance of an oil field, left his truck, discovered the entrance gate was locked, returned to his vehicle, and drove back in the direction from which he had come. 3 Casteneda did not address the good faith exception of DeLeon-Reyna, presumably because it ultimately held the stop to have been legal.

6 Reyna good faith exception. Unlike the situation in Casteneda,

Coleman could reasonably conclude that it was unusual for Ramirez's

truck to be on Pinon Road at that time. Coleman testified that he

knew the truck did not belong to a Pinon Road resident or to one of

their employees and that it was unusual for this truck to be on

Pinon Road at this time. Also, the Pinon Road turnoff was so close

to the checkpoint that an agent could reasonably believe that a

truck, on seeing the checkpoint, turned off the road with the

intent to avoid the checkpoint. The close proximity of Pinon Road

to the border and the checkpoint, the notoriety of the road's use

for illegal activity and to avoid the checkpoint, Coleman's

knowledge of the normal traffic on Pinon Road, especially at 6:30

a.m., and the fact that Pinon Road is basically a road to nowhere,

all generated Coleman's good faith belief that Ramirez was

attempting to avoid the checkpoint and that the stop was legally

based on the requisite reasonable suspicion. Under the Brignoni-

Ponce criteria, and given the similarity to the turn-around cases,

it was objectively reasonable for an experienced officer, situated

as was Coleman, to reach this conclusion.

We hold that, under all the circumstances, agent Coleman acted

with an objectively reasonable good faith belief that he had a

reasonable articulable suspicion that legally justified stopping

Ramirez on Pinon Road.4 The evidence seized at the checkpoint was

4 We do not address whether the stop was constitutional, only that, considering together all the particular circumstances of this case, the stop was sufficiently justified under the good faith exception to allow the fruits of the stop to be admitted in evidence.

7 hence admissible and Ramirez's conviction and sentence are

affirmed.

AFFIRMED

8