United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
Matter comes before the Court after an evidentiary hearing on
the Motion to Suppress (Doc. 24) and the Government's
Response in Opposition (Doc. 26).
Factual Background and Procedural History
early morning of October 3, 2017, Jorge Rodas was driving a
pick-up truck south on Tradeport Drive in Orlando, Florida.
As he and his passenger approached a 7-Eleven gas station on
the right, two Border Patrol agents, Edward Cardona and Ruben
Martinez, were about to pull out of the 7-Eleven and onto
Tradeport Drive. After observing the truck's occupants,
the agents decided to follow the Defendant, eventually
pulling up alongside him and later getting behind him and
requesting a check of his license plate. The license plate
check revealed that the vehicle was registered to a woman who
had previously entered the United States without inspection,
but at the time of the incident, possessed a valid work
permit. After continuing to follow the Defendant along
Tradeport Drive for about two miles, the agents stopped the
Defendant just as he merged onto the entrance ramp to State
Road 528. The Defendant was arrested and has been charged
with illegal reentry (Doc. 11).
Defendant filed a Motion to Suppress on December 6, 2017, and
the Government filed its Response on December 13, 2017. The
Court conducted an evidentiary hearing on the Motion on
February 1, 2018.
the seizure occurs along America's border or its
functional equivalent, the Fourth Amendment applies to all
seizures of suspected illegal aliens, including seizures that
involve only a brief detention short of traditional arrest.
United States v. Brignoni-Ponce, 422 U.S. 873,
878-80 (1975); see also Almeida-Sanchez v. United
States, 413 U.S. 266, 272 (1973). In
Brignoni-Ponce, the Supreme Court held that when a
law enforcement officer's observations lead him to
reasonably suspect that a particular vehicle may contain
aliens who are illegally in the country, he may stop the car
briefly and investigate the circumstances that provoke
suspicion. Id. at 881. Specifically, the court held
that “officers on roving patrol may stop vehicles only
if they are aware of specific articulable facts, together
with rational inferences from those facts, that reasonably
warrant suspicion that the vehicles contain aliens who may be
illegally in the country.” Id. 884. The
officer's reasonable suspicion must be based on the
totality of the circumstances surrounding the encounter.
Id. at 885 n.10. Of course, “reasonable
suspicion may even exist if each fact ‘alone is
susceptible of innocent explanation.'” United
States v. Bautista-Silva, 567 F.3d 1266, 1272 (11th Cir.
2009) (quoting United States v. Arvizu, 534 U.S.
266, 277-78 (2002)). District courts must evaluate the
totality of the circumstances in order to determine whether
there was “a particularized and objective basis for
suspecting legal wrongdoing.” Id. (quoting
Arvizu, 534 U.S. at 273).
Brignoni-Ponce Court laid out a number of factors
that may be considered in deciding whether there is
reasonable suspicion to stop a vehicle, including its
proximity to the border, the usual patterns of traffic on the
particular road, and the officer's previous experience
with alien traffic. Brignoni-Ponce, 422 U.S. at
The driver's behavior may be relevant, as erratic driving
or obvious attempts to evade officers can support a
reasonable suspicion. Aspects of the vehicle itself may
justify suspicion. For instance, officers say that certain
station wagons, with large compartments for fold-down seats
or spare tires, are frequently used for transporting
concealed aliens. The vehicle may appear to be heavily
loaded, it may have an extraordinary number of passengers, or
the officers may observe persons trying to hide. The
Government also points out that trained officers can
recognize the characteristic appearance of persons who live
in Mexico, relying on such factors as the mode of dress and
haircut. In all situations the officer is entitled to assess
the facts in light of his experience in detecting illegal
entry and smuggling.
Id. at 885 (internal citations omitted). The
Eleventh Circuit has since clarified that the appropriate
objective inquiry concerns specific agent experiences based
on testimony, “not the purported experiences of other
agents who did not testify.” United States v.
Bautista-Silva, 567 F.3d 1266, 1273 (11th Cir. 2009).
That Eleventh Circuit opinion reversed an order by this
Court. See United States v. Bautista-Silva, No.
6:08-CR-68-ORL31KRS, 2008 WL 2484203 (M.D. Fla. June 19,
2008), rev'd and remanded, 567 F.3d 1266 (11th
was an illegal smuggling case involving factors not present
here. One of the factors relied upon by the
government in that case was that when approached by the
government's vehicle, the defendant stared straight ahead
instead of acknowledging the officers' presence. Here,
the opposite occurred-the Defendant looked at the officers
and allegedly exhibited “surprise.” The question
before the Court now is whether a finding of reasonable
suspicion comports with current Eleventh Circuit law. To
determine this and comply with Bautista-Silva, the
Court must view all of the factors relied on by the agents
together, rather than in isolation. First, the Court will
assess the credibility of the agents' testimony as it
relates to the factors they relied upon. In this case, there
is a significant amount of testimony about which the Court
has serious credibility concerns.
The Reactions of the Defendant and his Passenger
a preliminary hearing, Cardona testified that the basis of
the traffic stop was the Defendant's “continuously
looking at [Cardona] through the rear-view mirror.”
Doc. 32-3 at 10-11. However, when Cardona testified at the
evidentiary hearing, he did not mention the Defendant doing
any such thing, even when he summarized the bases for the
stop. See Tr. 35:8-24. Instead, with respect to the
Defendant's facial reaction to the ...