United States v. Moline-Borroto

United States Court of Appeals
for the Fifth Circuit

No. 19-60294

United States of America,

Plaintiff—Appellee,

versus

Pavel Isaac Burgos-Coronado, also known as Pavel Isaac
Burgos Coronado,

Defendant—Appellant,

consolidated with

No. 19-60295

United States of America,

Plaintiff—Appellee,

versus

Javier Alejandro Moline-Borroto, also known as Javier
Alejandro Moline Borroto,

Defendant—Appellant,

United States Court of Appeals
Fifth Circuit
FILED
August 18, 2020

Lyle W. Cayce
Clerk
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consolidated with

No. 19-60380

United States of America,

Plaintiff—Appellee,

versus

Valentina Sybreg Castro-Balza, also known as Valentina
Sybreg Castro Balza,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:18-CR-70-3
USDC No. 1:18-CR-70-4
USDC No. 1:18-CR-70-7

Before Clement, Southwick, and Higginson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Defendants challenge the denial of their motion to suppress evidence,
arguing police officers did not have reasonable suspicion that would allow
prolonging their stop at a highway safety checkpoint. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND
Around midnight on May 18, 2018, State Troopers Gregory Bell,
Matthew Minga, Andrew Beaver, and Steven Jones set up a “driver’s safety
checkpoint” on a highway approximately eight miles east of Starkville,
Mississippi. The checkpoint was intended for the troopers to check for
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driver’s licenses, insurance, seat belt usage, and other safety matters. After
approximately 15 to 20 minutes of light traffic, the troopers stopped a Toyota
with a Florida license plate traveling north, occupied by the three defendants
— Pavel Isaac Burgos-Coronado, Javier Alejandro Moline-Borroto, and
Valentina Sybreg Castro-Balza. Trooper Minga approached the Toyota and
made contact with the occupants. Trooper Bell, who was observing and
overheard Trooper Minga’s exchange with the Toyota occupants, identified
Moline-Borroto as the driver, Burgos-Coronado in the rear driver-side seat,
and Castro-Balza in the rear passenger-side seat. At a September 7, 2018
hearing on the defendants’ motion to suppress, Trooper Bell described the
exchange with the Toyota occupants:
Trooper Minga asked the driver for his driver’s license
and proof of insurance. Mr. Borroto provided him a Florida
temporary issue driver’s license. And, at that time, I believe he
said it was a rental vehicle. Trooper Minga asked him, then,
who he had in the rear seat and who his passengers were.
Mr. Borroto said something in Spanish to them, rolled
down the back window; and Mr. Pavel [Burgos-Coronado]
provided another temporary Florida driver’s license; and
Ms. Balza provided a Venezuela passport.
Bell subsequently answered some questions:
Q. . . . [W]hen Trooper Minga asked about the other persons
in the car, were you able to hear that?
A. Yes, sir.
Q. And what happened? How was the conversation between
the passengers in the backseat?
A. It was in Spanish between them.
. . .
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Q. Okay. And there was a conversation, then, between the
people in the car or Trooper Minga with the persons in the
backseat?
A. No. The driver of the vehicle with the persons in the
backseat.
Q. And were you able to listen and determine whether it was in
English or Spanish?
A. It was Spanish.
Q. Did you ever attempt to speak to the persons in the backseat
of the Toyota?
A. I tried to, but we didn’t — outside of basic conversation,
Mr. [Moline-]Borroto pretty much translated anything we
asked.
At the same hearing, Bell also testified that he started questioning Moline-
Borroto only after the passengers gave Trooper Minga their identifications.
Upon inspecting the Toyota occupants’ identifications, Trooper Bell noticed
that Castro-Balza’s Venezuelan passport did not have a stamp indicating her
entry into the United States.
Trooper Bell also testified that because of the seating arrangement
within the Toyota — male driver, empty passenger seat, male occupant in
rear driver-side seat, and female occupant in rear passenger-side seat — he
had a concern about the trip being abnormal “[f]rom a human trafficking
aspect.”
About 25 to 30 seconds after the Toyota was stopped, a Volkswagen
arrived at the checkpoint. Trooper Jones, who had been near Troopers
Minga and Bell when the stop of the Toyota took place and had overheard
discussion of a Venezuelan passport, talked to the occupants of the
Volkswagen and noticed that it too had a Florida license plate, and he noted
that the driver of the Volkswagen, Daniel Pena-Morales, also had a
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Venezuelan passport. When Trooper Jones informed Trooper Bell of the
apparent connections between the two vehicles, Trooper Bell asked the
driver of the Toyota, Moline-Borroto, if he was traveling with anyone. After
hesitation, Moline-Borroto responded that he was traveling with the
individuals in the Volkswagen. Trooper Jones asked the driver of the
Volkswagen, Pena-Morales, the same question, to which Pena-Morales
responded that he was not traveling with anyone. According to Trooper
Bell’s testimony at the suppression hearing, these conflicting accounts put
him on “high alert.” Ultimately, the troopers searched the Toyota and the
Volkswagen and found evidence of credit card skimming in both.
A grand jury charged Burgos-Coronado, Moline-Borroto, and Castro-
Balza — the Toyota occupants — as well as the Volkswagen occupants, with
(1) conspiracy to commit offenses against the United States which affected
interstate commerce; (2) possession with intent to defraud of an access
device card encoder, software, and computer; (3) possession with intent to
defraud of credit card skimming equipment; (4) possession with intent to
defraud of 15 or more unauthorized access devices; and (5) using or
attempting to use with intent to defraud more than one unauthorized access
device to obtain goods, services, and money aggregating in excess of $1,000.
The defendants from both vehicles moved to suppress the evidence
based on an unconstitutional search and seizure. The district court denied
the motions. Pursuant to plea agreements, Burgos-Coronado, Moline-
Borroto, and Castro-Balza entered conditional guilty pleas, reserving the
right to appeal the denial of their motions to suppress. They were sentenced
and entered separate notices of appeal. We granted an unopposed motion to
consolidate these three defendants’ appeals for briefing and oral argument
purposes. We denied the Government’s opposed motion to consolidate the
Toyota occupants’ appeals with similar appeals filed by the Volkswagen
occupants. On January 29, 2020, we affirmed the district court’s denial of
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the motions to suppress with respect to the Volkswagen occupants. See
United States v. Pena-Morales, 791 F. App’x 499 (5th Cir. 2020). We now
AFFIRM in the companion cases.

DISCUSSION
Our review of a denial of a motion to suppress evidence requires us to
examine factual findings for clear error but to consider conclusions of law de
novo; a determination about the existence of reasonable suspicion is a legal
conclusion. United States v. Freeman, 914 F.3d 337, 341 (5th Cir. 2019). “We
view the evidence in the light most favorable to the party prevailing below.”
Id. We will uphold the district court’s ruling if there is any reasonable view
of the evidence to support it. See id. at 342.
“A checkpoint-type stop of an automobile is a seizure constrained by
the Fourth Amendment.” United States v. Green, 293 F.3d 855, 857–58 (5th
Cir. 2002). While suspicionless seizures are ordinarily unreasonable, and
thus Fourth Amendment violations, certain types of automobile checkpoint
stops have been excepted from this general rule. Id. at 858. The Supreme
Court has suggested that such checkpoints designed to check a driver’s
license and registration are permissible. See id. (citing Delaware v. Prouse,
440 U.S. 648, 663 (1979)). We have explained that “it is a legitimate,
programmatic purpose that justifies a checkpoint stop made without any
suspicion.” United States v. Machuca-Barrera, 261 F.3d 425, 433 (5th Cir.
2001). We examine the available evidence to determine the “primary
purpose” of a checkpoint; “a program driven by an impermissible purpose
may be proscribed while a program impelled by licit purposes is permitted.”
City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000). “[T]he primary
purpose of a checkpoint is a finding of fact reviewed for clear error.” Green,
293 F.3d at 859.
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Though the evidence of the programmatic purpose of the checkpoint
here was scant, Trooper Bell testified that the troopers were stopping every
car that passed to check for driver’s licenses, insurance, seat belt usage, and
other “safety aspects.” The district court’s finding “that the purpose of the
checkpoint” was to “check[] licenses, insurance, and seatbelts” was not
clearly erroneous. Seizures carried out at “general crime control”
checkpoints are justified only if accompanied by “some quantum of
individualized suspicion.” Edmond, 531 U.S. at 47. In contrast, the
“suspicionless” checkpoint here was permissible because it served a
legitimate programmatic purpose closely related to the necessity of ensuring
roadway safety and “problem[s] peculiar to the dangers presented by
vehicles.” Green, 293 F.3d at 858.
Inquiries relating to safety, much like those at a regular non-
checkpoint traffic stop, might include checking the driver’s license of the
driver, determining whether there are outstanding traffic-related warrants
against the driver, and inspecting an automobile’s registration and proof of
insurance, i.e., inquiries “ensuring that vehicles on the road are operated
safely and responsibly.” Rodriguez v. United States, 575 U.S. 348, 355 (2015).
Seizures carried out pursuant to that purpose are permissible, at least at their
inception, under the Fourth Amendment. See Green, 293 F.3d at 858.
In the context of immigration checkpoints, we have held that “the
permissible duration of the stop is limited to the time reasonably necessary to
complete a brief investigation of the matter within the scope of the stop.”
Machuca-Barrera, 261 F.3d at 433. The primary purpose of the checkpoint
stop here was not related to immigration, but the inquiry remains the same.
“The key is the rule that a stop may not exceed its permissible duration
unless the officer has reasonable suspicion.” Id. at 434. This means that if
the initial inquiries generate reasonable suspicion of other criminal activity,
even if not related to the primary purpose of the checkpoint, the stop may be
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lengthened to accommodate the new justification. Id. It is thus permissible
for an officer to prolong a detention until the officer has dispelled the newly-
formed suspicion. United States v. Glenn, 931 F.3d 424, 429 (5th Cir.), cert.
denied, 140 S. Ct. 563 (2019).
A reasonable suspicion consists of “specific and articulable facts . . .
taken together with rational inferences from those facts” that reasonably
suggest “criminal activity [is] afoot.” United States v. Escamilla, 852 F.3d
474, 480–81 (5th Cir. 2017) (alteration in original) (quoting Terry v. Ohio, 392
U.S. 1, 21, 30 (1968)). Although reasonable suspicion cannot consist simply
of an officer’s hunch that an individual is engaged in illegal activity, only
“some minimal level of objective justification” is required. United States v.
Broca-Martinez, 855 F.3d 675, 678 (5th Cir. 2017) (quotation marks omitted).
In our review, we must consider the “totality of the circumstances” that
confronted the law enforcement officer. United States v. Arvizu, 534 U.S.
266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).
Observations that by themselves are susceptible to innocent explanations,
when taken together, can still amount to reasonable suspicion. Id. at 274–75.
“In considering whether officers reasonably suspect someone of criminal
activity, we defer to their law enforcement experience, recognizing that
trained officers may draw inferences from certain facts ‘that might well elude
an untrained person.’” Escamilla, 852 F.3d at 481 (quoting United States v.
Cortez, 449 U.S. 411, 418 (1981)).
Our inquiry is thus whether reasonable suspicion of criminal activity
arose before the time reasonably necessary to satisfy the purpose of this stop
had expired. In our inquiry, we do not expand on the arguments made by the
defendants in the district court. The motion to suppress jointly filed by these
defendants contains the following assertions about the events after Moline-
Borroto stopped the Toyota at the checkpoint. “The officer then asked for
his identification and registration of the vehicle. Mr. Moline-Borroto handed
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a valid Florida’s driver license to the officer and the rental agreement for the
car. The passengers in the vehicle also produced valid identification. At this
point, the vehicle should have been waved through the stop and allowed to
proceed.”
Making the temporal point even clearer, at the suppression hearing,
the district court judge asked counsel for each of the Toyota occupants to
state exactly when the seizure became illegal. Counsel for Moline-Borroto
responded that the seizure became illegal “[t]he moment that the officer sees
the passengers with seat belts on, and that the driver has given him a license
that seems to be valid and has said I’m going to Memphis to see my uncle, at
that point, continued questioning I do not think was justified under the law.”
The statement about a trip to Memphis was in response to Trooper Bell’s
initial questioning. Counsel for Burgos-Coronado said she would “echo
everything” in that answer, and counsel for Castro-Balza said he “would
simply adopt the remarks” already made.
The relevant point identified by counsel was after those in the
backseat of the Toyota gave their identifications to Trooper Minga. Thus,
defendants did not contest the validity of any of Trooper Minga’s earlier
actions. At the time Trooper Bell began questioning Moline-Borroto, the
record shows that the following facts were known to the troopers: (1) the
time was soon after midnight, (2) the Toyota had an out-of-state license
plate, (3) the driver of the Toyota had a temporary driver’s license, (4) that
temporary driver’s license was also out-of-state, (5) the driver had not yet
provided registration or proof of insurance but claimed the vehicle was a
rental, (6) the driver was a man, the passenger seat was unoccupied, and
there was man and woman occupying the rear seats, (7) the driver began
translating to the passengers in Spanish, (8) the male passenger produced
another out-of-state temporary driver’s license, and (9) the woman
passenger produced a Venezuelan passport with no entry stamp.
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We must view the evidence in the light most favorable to the party that
prevailed below, i.e., the prosecution. United States v. Pack, 612 F.3d 341, 347
(5th Cir. 2017). In doing so, we recognize that each of the articulated facts is
consistent with an innocent explanation. That, though, is not enough to rule
out reasonable suspicion. See Arvizu, 534 U.S. at 274–75. The collection of
information was that a female passenger’s passport lacked an entry stamp,
which might reasonably suggest that she was in the country illegally. Further,
the abnormal seating arrangement — abnormal because the officer believed
multiple adults do not usually choose to sit in the back when the passenger
seat is empty — when combined with the unstamped passport and the late
hour, might suggest that the woman was being held against her will.
Based on these facts, the troopers had the “minimum level of
objective justification” to support reasonable suspicion of criminal activity
— namely, human trafficking— sufficient to justify prolonging the stop by
inquiring further about where the Toyota occupants were going. During that
justified extension, more facts were discovered supporting reasonable
suspicion and, eventually, supporting a search.
AFFIRMED.
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