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Police had reasonable suspicion of drug trafficking for stop and thus delay to investigate traffic violation was not relevant

Facts

Jesus Leonardo Esquivel-Carrizales (Esquivel) was arrested as a passenger in a car in which officers discovered methamphetamine and cocaine. Prior to the stop of that car, Brownsville Homeland Security (HSI Brownsville) agents had an ongoing drug trafficking investigation which had identified several people who were truck drivers or employed in the commercial cargo business, driving 18- wheelers, including Jose Santos-Esquivel (Santos). After a cooperating defendant told HSI Brownsville that Santos was looking for a compartment to be specially produced for him that was presumably going to be used to conceal narcotics, HSI Brownsville had the cooperating defendant build the external diesel tank for like a diesel truck located in the “back” or “bed” of a truck that Santos frequently drove, and HSI Brownsville obtained a warrant for a GPS tracker which they attached to the truck. HSI Brownsville suspected Santos was trafficking narcotics from the Rio Grande Valley to Houston.

On the day of the stop in question, HSI Brownsville received an alert that the tracker indicated the truck was heading towards Houston. HSI Brownsville contacted the point of contact for HSI Houston, Agent Rogers, around 8 p.m., and conveyed that there was a vehicle coming north from Brownsville that was possibly loaded with narcotics, handed over the tracking information, and asked Houston to proceed with surveillance. Agent Rogers’s team located Santos’s truck at around 10 p.m. in a parking lot across the street from the Galleria mall. It was five days before Christmas, so the mall was open late.

A white Volkswagen (VW) pulled up about a space over from the truck and two men, Esquivel and Alejandro Pena, had come from one of the stores with a shopping cart, or a basket, or something and were loading items into the VW. The men began talking with the driver of the pickup truck, took something out of the truck, and then walked back and forth talking to Santos. It is not clear from the record what that something was.

Agent Rogers arrived on scene after Esquivel and Pena were back at the VW and was informed by a member of his team what had occurred. Agent Rogers then saw Esquivel having a conversation with Santos and get inside the truck for ten, fifteen minutes while Pena was on the phone and getting in and out of the car. After Esquivel got back out of the truck, Esquivel and Pena arranged some stuff in the trunk of the VW.

At this point, based on the totality of the circumstances, including that all of this was occurring in a dark parking lot, Agent Rogers and the other officers on scene thought they were observing somebody transferring narcotics to another vehicle. Esquivel and Pena then got into the VW (Pena driving and Esquivel in the passenger seat) and both vehicles left the parking lot. Agent Rogers relayed the information about the investigation to Harris County Sheriff’s officers and requested that they engage in a traffic stop of the VW while he pursued Santos in the pickup truck. Deputy Sweeney pulled the VW over around 10:49 p.m. for speeding and twice failing to signal a lane change.

Deputy Sweeney asked Pena for his license and proof of insurance, and Pena was really nervous, fumbling for his wallet, and didn’t want to make eye contact. This started to make Deputy Sweeney nervous, so Deputy Sweeney had Pena sit in the back of the police car. As Deputy Sweeney went back to the VW, Esquivel started to get out of the car. Deputy Sweeney told him to get back in, took his identification, and went back to the police car to start to run background checks.

Deputy Sweeney started to run the information but Esquivel started to get out on him again. It is unclear based on the record what time the checks started or if the driver’s check or Esquivel’s check were completed. At some point, which Deputy Sweeney believes was after he spoke with Pena, Deputy Sweeney asked for another unit because the driver was really nervous, and then the passenger kept getting out on me. He didn’t want to be in the car. At 10:57 p.m., eight minutes after Deputy Sweeney was dispatched, Pena gave consent to search the car, in which the officers discovered narcotics.

Esquivel was convicted by bench trial of possession and conspiracy to possess with intent to distribute 500 grams or more of a mixture containing methamphetamine and five kilograms or more of a mixture containing cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and 18 U.S.C. § 2. On appeal, he argued there was no reasonable suspicion for stop. The 5th affirmed.

Analysis

When analyzing the legality of an investigative stop, we engage in a two-part inquiry. First, we consider whether the officer’s decision to make the stop was justified at its inception. Second, we determine whether or not the officer’s subsequent actions were reasonably related in scope to the circumstances that caused him to stop the vehicle in the first place. See Bass. Esquivel argues that no reasonable suspicion of drug trafficking arose, and, because of that, the stop was impermissibly prolonged to investigate the traffic violations.

If there was reasonable suspicion of drug trafficking, we need not analyze whether the stop was impermissibly prolonged to investigate the traffic violations. See Villafranco-Elizonodo. For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle. See Andres. Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause. See SCOTUS Navarette v. California, 572 U.S. 393 (2014).

Our assessment of reasonable suspicion is based on the totality of the circumstances. We give due weight to the officer’s factual inferences because officers may draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person. See Smith. Because there was some degree of communication between HSI Brownsville, Agent Rogers, and Deputy Sweeney, reasonable suspicion can vest through their collective knowledge. See Bass.

At the time of the stop, evidence had shown that HSI Brownsville was conducting an ongoing investigation into drug trafficking with Santos as one of its targets. Santos had asked a cooperating defendant to modify his truck by building a hidden compartment, and the hidden compartment had been installed. On the day in question, Santos drove to Houston from Brownsville in the truck with the hidden compartment. When Santos had come to Brownsville in the past, he was meeting with other people who were documented as being involved in drug trafficking and who either had been arrested before the incident in question, or have since been arrested for narcotics trafficking and/or bulk cash smuggling.

From Brownsville to Houston is pretty much the main destination for narcotics and a drug trafficking corridor. Further, it is very common for drug traffickers to use a hidden compartment while traveling up from the Rio Grande Valley. As to the specifics of the night in question, Santos met with Pena and Esquivel, who were driving a VW, in a dark parking lot. Santos, Esquivel, and Pena talked and walked back and forth between the truck and the VW, and Pena took something from the back of the truck and put it in the trunk of the VW. Esquivel got into the truck for ten or fifteen minutes while Pena was on the phone and getting in and out of the VW.

After Esquivel got out of the truck, he and Pena arranged some stuff in the trunk of the VW and drove off. Right after the stop began but before any checks were run, Deputy Sweeney observed that Pena was really nervous, fumbling for his wallet, and didn’t want to make eye contact, which made Deputy Sweeney nervous. In addition, Esquivel kept getting out of the VW and didn’t want to be in the VW. These factors and the reasonable inferences that may be drawn from them, would allow a reasonable person to suspect that Esquivel was engaging in illegal activity.

Further, in determining whether reasonable suspicion exists, an officer’s inferences based on knowledge gained through specialized training and experience routinely play a significant role in law enforcement investigations. See Bass. The HSI Brownsville officer working this case received training on narcotics trafficking, including the whole tactical side of electronic surveillance, then going forward through, like, interviewing, drug recognition, general history of different trafficking methods and drug trafficking organizations. When asked what else the hidden compartment could be used for besides transporting drugs from Brownsville to Houston, he testified: “I can’t think of anything. The only—only other scenario would be taking an empty compartment and bringing back bulk cash currency.”

Agent Rogers, the Houston officer who surveilled the parking lot, had sixteen years’ experience working for HSI including many narcotics investigations. On the night in question, based on the totality of the circumstances, Agent Rogers and the other members of law enforcement thought they had observed somebody transferring narcotics to another vehicle. Agent Rogers watched the stop of Esquivel and Pena from a distance after losing track of Santos because he was just making sure that everything was okay, and that they found what they thought was narcotics.

Esquivel objects to many of the factors outlined above. For instance, he argues that it was five days before Christmas and the mall was open late, so the exchange could have been shoppers exchanging gifts. However, we have consistently recognized that reasonable suspicion need not rule out the possibility of innocent conduct. See SCOTUS Navarette v. California, 572 U.S. 393 (2014). Further, he argues his route is not dispositive, but, as we have explained, while the probativeness of a particular defendant’s route is minimal, we have consistently considered travel along known drug corridors as a relevant—even if not dispositive— piece of the reasonable suspicion puzzle. See Smith. Finally, Esquivel objects to considering demeanor, but though nervousness, standing alone, generally is not sufficient to support reasonable suspicion (see Macias), it is indeed supportive of a reasonable suspicion (see McKinney), especially because Deputy Sweeney explained the driver was more nervous than Deputy Sweeney thought appropriate.

Because there was reasonable suspicion of drug trafficking, we do not consider whether the traffic stop might have been unreasonably prolonged to investigate only traffic violations.

For the foregoing reasons, we AFFIRM.

 

https://www.ca5.uscourts.gov/opinions/unpub/21/21-20586.0.pdf