The opinion of the court was delivered by: Furgeson, District Judge.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND MOTION TO
After Defendant Maxwell Edward Chrisman's flight from the
scene of a roving patrol stop and subsequent apprehension,
United States Border Patrol agents discovered 565.16 pounds of
marijuana in his vehicle. Defendant was charged with possession
with the intent to distribute marijuana, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii).
Early in the morning of January 20, 2002, Border Patrol Agents
Rafael Ramirez and Elizabeth Hettenhouser were inspecting a levy
road approximately ten miles west of the Fort Hancock Port of
Entry. Around 12:15 a.m., the Agents received a signal that a
seismic sensor, placed along the Rio Grande, which serves as the
U.S.-Mexico border in Texas, had been activated.
The sensor is positioned approximately seventeen miles east of
the Fort Hancock Port of Entry and two miles south of I-10. The
only way to access the terrain around the sensor, from north of
the border, is on the old Wander Ranch Road ("the Road"). The
Road is winding, unpaved, and full of washouts. Driving its
length at night, without four-wheel drive, could take over
twenty minutes because of its poor condition.
The area surrounding the Road is isolated and uninhabited.
There are no homes or businesses near the sensors, and the
closest establishments to the Road are a motel, approximately
five miles to the east, and a truck stop, approximately five
miles to the west.
The Agents proceeded directly toward the area of the sensor
upon receiving its signal. An estimated twenty-five minutes
elapsed between the time of the sensor alert and the time of the
Agents' arrival at the point where the Road intersects
Interstate 10 ("I-10"). While en route, they received an alert
from a second seismic sensor that is located to the north of the
first sensor. This sequence of sensor hits indicated that the
pedestrian traffic was northbound.
Upon arriving in the area, the Agents began to position
themselves immediately north of the point where the Road and
I-10 meet. At this time, they received a signal from a magnetic
sensor, located along the Road, that indicated the presence of a
vehicle traveling south towards the Rio Grande.
The seismic sensor hits along the river combined with the
magnetic sensor hit indicating a southbound vehicle roused the
Agents' suspicions. Such a pattern often connotes illegal
immigration or drug smuggling into the United States. In this
scenario, the southbound vehicle meets the illegal immigrants or
drug smugglers after they cross the Rio Grande and transports
the immigrants or narcotics away from the border.
Simultaneous to the magnetic sensor activity, the Agents saw a
light, glowing south of 1-10, that appeared to be coming from a
vehicle's headlights. The Agents believed that if they drove
south to investigate the source of the light, anyone in the area
would have fled to Mexico. Because the Road is the only way to
access the area of the sensor activity, they knew that the
southbound vehicle would have to return towards their position
north of 1-10. Content to wait, the Agents scanned the area
south of the interstate with their binoculars.*fn1
The Agents did not want to stop the van immediately upon
seeing it because of construction on I-10 that narrowed the
interstate to one westbound lane. Instead, they followed it for
approximately fifty miles, through several construction zones,
and finally pulled it over near mile marker forty-seven.
Agent Ramirez exited his vehicle and approached the van. When
he reached the rear of the van, Defendant sped away, crossing
the westbound lanes, median, and eastbound lanes of the
interstate. Defendant drove into an arroyo to the south of I-10,
where the van became immobilized in the sand. He fled from the
vehicle and, after a short chase, was apprehended and handcuffed
by Agent Ramirez. Inside the van, Agents found 565.16 pounds of
Border Patrol Agent Daniel Govea, who had arrived at the
scene, read Defendant his Miranda rights, and Defendant
invoked his right to remain silent. The Agents transported
Defendant to the Fort Hancock Port of Entry where, several hours
later, DEA Special Agents Jaime Ordonez and Michael Stevens took
custody of him. Agent Ordonez advised Defendant of his Miranda
rights a second time, and once again, Defendant invoked his
rights and refused to give a statement.
Agents Ordonez and Stevens transported Defendant in their
pickup truck from Fort Hancock to El Paso. Defendant sat,
handcuffed and silent, between the two Agents while they
conversed about the National Football League playoffs. At one
point, Agent Stevens told Defendant he should smuggle dope
during the week, instead of on weekends, because the Agents do
not get paid to work on Sundays and having to work interrupts
their football viewing. Defendant responded that, indeed, he
does smuggle drugs on weekdays but had never been caught. The
Agents did not say anything else to Defendant during the ride.
Defendant filed the instant Motions on March 22, 2002, and the
Government replied on April 2, 2002. The Court held a hearing on
the Motions on May 28, 2002.
Defendant alleges that (1) the Border Patrol Agents stopped
his vehicle without reasonable suspicion, in violation of the
Fourth Amendment, and (2) the DEA Agents interrogated him after
he had invoked his rights to counsel and to remain silent, in
violation of the Fifth Amendment. The Court discusses the issues
Defendant contends that Border Patrol Agents Ramirez and
Hettenhouser based their decision to stop him solely on a hunch
that Defendant's vehicle had triggered the sensors on the Road.
Defendant argues that because "there were no other objective,
articulable facts on which to base a reasonable suspicion," the
seizure and subsequent search of the van violated his
An agent has reasonable suspicion if, based on the totality of
the circumstances, he has a particularized and objective basis
for suspecting criminal wrongdoing.*fn4 The totality of the
circumstances test allows officers to draw upon their experience
and specialized training to make inferences from and deductions
about the information available to them.*fn5 Although an
officer's reliance on a mere hunch does not amount to reasonable
suspicion, "the likelihood of criminal activity need not rise to