Filed: Apr. 04, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 4, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 00-51273 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHN CHRISTIAN SUNDSBOE, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas (00-CR-242) Before KING, Chief Judge, and REAVLEY and STEWART, Circuit Judges. PER CURIAM:* John Christian Sundsboe (“Sundsboe”) entered a conditional
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 4, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 00-51273 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOHN CHRISTIAN SUNDSBOE, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas (00-CR-242) Before KING, Chief Judge, and REAVLEY and STEWART, Circuit Judges. PER CURIAM:* John Christian Sundsboe (“Sundsboe”) entered a conditional ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 4, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 00-51273
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CHRISTIAN SUNDSBOE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(00-CR-242)
Before KING, Chief Judge, and REAVLEY and STEWART, Circuit Judges.
PER CURIAM:*
John Christian Sundsboe (“Sundsboe”) entered a conditional guilty plea to possession with
intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), wherein he reserved the right to
appeal the district court’s denial of his motion to suppress over 2000 pounds of marijuana found in
his motor home. Sundsboe argues that the investigatory stop of his motor home was invalid because
it was not based on reasonable suspicion and that the illegal stop tainted his subsequent consent to
the search of the vehicle. We disagree.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
We review the district court’s factual findings for clear error, and its legal conclusions,
including whether there was reasonable suspicion, de novo. United States v. Espinosa-Alvarado, 302
F.3d 304, 305 n.1 (5th Cir. 2002). A Border Patrol agent on roving patrol may stop a vehicle “only
if the agent is aware of specific articulable facts” that support a reasonable suspicion that the vehicle
is being used for criminal activity.
Id. at 305-06. We consider the “totality of the circumstances” in
making this determination.
Id. at 306 (internal quotations omitted). The factors we consider include:
(1) the known characteristics of a particular area, (2) the agent’s experience with criminal activity,
(3) the proximity of the area to the border, (4) the usual traffic patterns on the road, (5) information
about recent illegal trafficking in the area, (6) the behavior of the driver, (7) the number, appearance
and behavior of the passengers.
Id. No single factor, nor the absence of a particular factor, controls
the conclusion.
Id.
Here, Sundsboe’s proximity to the border was evidenced by the fact that his motor home,
which was the only vehicle traveling on Highway 118 near Big Bend National Park that night,
activated a sensor within fifty miles of the border. See United States v. Jacquinot,
258 F.3d 423, 428
(5th Cir. 2001) (holding that although the vehicle was first spotted and stopped seventy-five miles
from the border, the time of arrival indicated that it was the same vehicle that had activated the
sensors close to the border); see also United States v. Samaguey,
180 F.3d 195, 198 (5th Cir. 1999)
(concluding that sensor alerts in close proximity to the border give rise to a reasonable inference that
the defendant’s car originated from the border). In addition, Sundsboe was traveling by himself on
Highway 118, a known alien and drug trafficking route, at an unusual time of night in a motor home
regist ered to a person with a Hispanic surname. Sundsboe did not appear to be Hispanic to the
Border Patrol agent. Furthermore, the Border Patrol agent was aware of recent illegal alien and drug
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trafficking activity involving motor homes without tow-behind cars based on an earlier conversation
with a DEA agent and from his personal experience.1 Finally, Sundsboe’s overall driving behavior
was suspicious considering the terrain of the area and the lateness of the evening. United States v.
Nichols, 142 F.3d 857, 868 (5th Cir. 1998).
The totality of the circumstances support the district court’s conclusion that the Border Patrol
agent had reasonable suspicion to make the stop.2 Accordingly, the judgment of the district court
is AFFIRMED.
AFFIRMED.
1
We reject Sundsboe’s challenge to the district court’s consideration of hearsay evidence concerning the
characteristics of motor homes driven by smugglers. Hearsay evidence is admissible at a suppression hearing. See
United States v. Matlock, 415 U.S. 164, 175 (1974).
2
Sundsboe’s argument that his consent to search the motor home was invalid is irrelevant. The district court did
not rely on his consent to search the interior of the vehicle, and the canine sniff of the van does not constitute a search
or seizure under the Fourth Amendment. United States v. Dortch, 1999 F.3d 193, 197 (5th Cir. 1999).
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