United States v. Daniel Gonzalez-Garcia
Dissenting Opinion
dissenting.
I respectfully dissent. The majority runs afoul of our long-established rule that proximity to the border is a “paramount factor” in finding reasonable suspicion. Here, in light of the whole picture of evidence presented, the stop occurred too far from the border to support reasonable suspicion. Most of the Government’s evidence was not unique to Gonzalez-Garcia and could as easily have applied to innumerable other drivers. And the evidence that was truly particularized — like the fact that Gonzalez-Garcia failed to make eye contact with the border-patrol agent — does not pass Fourth Amendment muster.
I turn briefly to first principles. “[0]ffi-cers on roving patrol may stop vehicles only if they are aware of specific articula-ble facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.”
It has long been our rule that the first Brignoni-Ponce factor, proximity to the border, is a “paramount factor in determining reasonable suspicion.”
Here, this “paramount factor” weighs decisively against finding reasonable suspicion. The stop occurred well beyond our 50-mile benchmark. At the time of the stop, Gonzalez-Garcia was traveling northbound on Highway 281, “at least” 25 miles north of a United States Border Patrol checkpoint in Falfurrias, Texas. (Falfurri-as is about 75 miles north of the United States-Mexico border.) In other words, the stop occurred some 100 miles north of the border, at least twice as far as our long-established benchmark. This was not a close case.
Given that the stop occurred so far beyond the 50-mile benchmark, the whole picture that emerges in this case does not yield reasonable suspicion. Most of the Government’s evidence could have applied to any number of drivers on Highway 281 at the time of the stop: Gonzalez-Gareia’s truck was not a ranch truck; he was driving on a common smuggling route (which is also a major U.S. highway); the time of day was one favored by smugglers. The Government also noted that Gonzalez-Garcia was not driving directly toward the town where his car was registered. However, it failed to present any evidence that Gonzalez-Garcia was actually en route to his home at the time of the stop.
The Government leans heavily on the fact that Gonzalez-Garcia failed to make eye contact with the border-patrol agent. This fact, standing alone, is not enough to support reasonable suspicion. Our rule has been that a simple lack of eye contact, without more, should be accorded “little weight,”
. United. States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
. United States v. Orozco, 191 F.3d 578, 581 (5th Cir. 1999)
. Id. at 581 (citing United States v. Samaguey, 180 F.3d 195, 198 (5th Cir. 1999)).
. United States v. Hernandez, 477 F.3d 210, 213 (5th Cir. 2007) (citing United States v. Gonzalez, 190 F.3d 668, 671 (5th Cir. 1999)).
. United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000) (quoting Orozco, 191 F.3d at 581) (internal quotation marks omitted); see also United States v. Nichols, 142 F.3d 857, 867 (5th Cir. 1998) (referring to
. United States v. Inocencio, 40 F.3d 716, 722-23 (5th Cir. 1994) (citing United States v. Salazar-Martinez, 710 F.2d 1087, 1088 (5th Cir. 1983), and United States v. Henke, 775 F.2d 641, 645 (5th Cir. 1985)).
. United States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir. 1998) (holding that, when proximity to the border is lacking, the Court should look at the other factors "most carefully”)-
. United States v. Jacquinot, 258 F.3d 423, 428 (5th Cir. 2001).
. Id. (citing Zapata-Ibarra, 212 F.3d at 881).
. United States v. Moreno-Chaparro, 180 F.3d 629, 632 (5th Cir. 1998).
. United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993).
Opinion of the Court
The conviction of Daniel Gonzalez-Garcia for unlawfully transporting illegal aliens is appealed only to contest the deni
The parties know well the law and the testimony of the Border Patrol agent, which we have now studied and need not repeat. We look at all of the circumstances and whether they will support a reasonable suspicion of criminal activity.
The evidence supports a finding of reasonable suspicion. The vehicle was stopped in an area extremely notorious for alien smuggling. It was not local and somewhat out of place for 7:30 a.m. on a Saturday morning. The agent had over fourteen years’ experience as a border patrol agent, handled between 20 to 25 alien smuggling cases each year, and estimated that ninety percent of the vehicle stops he made involved a violation. The defendant behaved abnormally by avoiding looking over at the agent as the agent drove alongside him for a mile or two. We agree with the ruling of the able district judge. Although the dissent cursorily recognizes that many of the relevant factors support reasonable suspicion, it fails to afford them due weight.
Defendant stipulated to the truth that he knew he was transporting illegal aliens.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Daniel GONZALEZ-GARCIA, Defendant-Appellant
- Cited By
- 3 cases
- Status
- Unpublished