Page 52 - May June 2019 TPA Journal

Agent Perez admitted to conducting roving patrol illegal activity; (5) behavior of the driver; (6)
stops of all vehicles turning onto FM 2050 from particular aspects or characteristics of the vehicle;
Highway 59, the court said its decision did not (7) information about recent illegal trafficking of
hinge solely on that admission and was merely one aliens or narcotics in the area; and (8) the number
aspect taken into consideration. At a later hearing of passengers and their appearance and behavior.
regarding the detention of a material witness
pending the instant appeal, the district court stated “No single factor is determinative; the totality of
it found Ms. Rivera-Quintero’s testimony about the particular circumstances known to the agents
Freeman’s driving to be truthful. The district court are examined when evaluating the reasonableness
also found that “the math did not add up” with of a roving border patrol stop.” The primary
respect to Freeman’s speed, and that the agents elements “of a determination of reasonable
never actually witnessed Freeman speeding. The suspicion or probable cause will be the events
district court found there to be “nothing evasive which occurred leading up to the stop or search,
about the way that he was driving,” and that the and then the decision whether these historical
dust being kicked into the air was “as good as it facts, viewed from the standpoint of an objectively
got.” The district court characterized the stop as a reasonable police officer, amount to reasonable
“fishing expedition” and commented that had the suspicion or to probable cause.”
agents been a little more patient and stayed behind
1. Proximity to the Border
the vehicle longer, they could probably have
developed reasonable suspicion.
“[O]ne of the vital elements in the Brignoni-Ponce
reasonable suspicion test is whether the agents had
The Government appeals the district court’s grant
reason to believe that the vehicle in question
of Freeman’s motion to suppress as it relates to the
recently crossed the border.” “[A] car traveling
February 13th stop.
more than 50 miles from the border is usually
“The Fourth Amendment prohibits ‘unreasonable viewed as being too far from the border to support
searches and seizures’ by the Government, and its an inference that it originated its journey there.”
protections extend” to roving patrol stops by U.S. “If there is no reason to believe that the vehicle
Border Patrol agents. “To temporarily detain a came from the border, the remaining factors must
vehicle for investigatory purposes, a Border Patrol be examined charily.” While this court does not
agent on roving patrol must be aware of ‘specific adhere to a bright line test regarding proximity, the
articulable facts’ together with rational inferences proximity element can be satisfied “if the
from those facts, that warrant a reasonable defendant’s car was first observed within 50 miles
suspicion that the vehicle is involved in illegal of the United States/Mexico border, but was
activities, such as transporting undocumented stopped more than 50 miles from the border.”
immigrants.”
The facts here are essentially undisputed—
In United States v. Brignoni-Ponce, 422 U.S. 873, Freeman’s truck was spotted less than 50 miles
884–85 (1975), the Supreme Court outlined from the border and was stopped more than 50
several factors to be considered when determining miles from the border. Because the truck was
if reasonable suspicion exists. The Brignoni-Ponce spotted less than 50 miles from the border, the
factors include: proximity element is satisfied. Nevertheless, this
fact alone cannot support reasonable suspicion,
(1) the area’s proximity to the border; (2) “otherwise, law enforcement agents would be free
characteristics of the area; (3) usual traffic to stop any vehicle on virtually any road anywhere
patterns; (4) the agents’ experience in detecting near the Texas-Mexico border.”

48 www.texaspoliceassociation.com • 866-997-8282 Texas Police Journal