Filed: Jun. 22, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED JUNE 22, 2004 IN THE UNITED STATES COURT OF APPEALS June 21, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-50213 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIZABETH HERNANDEZ-SARMIENTO, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. P-02-CR-125-ALL Before JOLLY, DAVIS and JONES, Circuit Judges. EDITH H. JONES, Circuit Judge:* The court has care
Summary: United States Court of Appeals Fifth Circuit F I L E D REVISED JUNE 22, 2004 IN THE UNITED STATES COURT OF APPEALS June 21, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-50213 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIZABETH HERNANDEZ-SARMIENTO, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. P-02-CR-125-ALL Before JOLLY, DAVIS and JONES, Circuit Judges. EDITH H. JONES, Circuit Judge:* The court has caref..
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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 22, 2004
IN THE UNITED STATES COURT OF APPEALS June 21, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50213
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIZABETH HERNANDEZ-SARMIENTO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-02-CR-125-ALL
Before JOLLY, DAVIS and JONES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The court has carefully considered the appeal filed by
Hernandez challenging the denial of her motion to suppress
evidence. Although Appellant’s position is well argued, the
determination whether Game Warden Cervantez had reasonable
suspicion to stop her car because of its unusual night-time
activity on Highway 349 is in this case heavily dependent on the
district court’s credibility determination. Both the district
court and the magistrate judge found Warden Cervantez’s explanation
*
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opinion should not be published and is not precedent except under the limited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.
of the basis for his suspicion credible, notwithstanding
Appellant’s counter-arguments. The court’s factfindings are
entitled to deference under the clearly erroneous standard.
Further, his articulated facts, taken together, satisfied a
standard of reasonable suspicion that Hernandez’s vehicle might be
engaged in illegal hunting. See United States of America v.
Arvizu, 534 U.S. 266 (2002).
Accordingly, the motion to suppress was correctly denied,
and the conviction is AFFIRMED.
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E. GRADY JOLLY, Circuit Judge, dissenting:
I respectfully dissent.
Warden Cervantez testified that he suspected Hernandez-
Sarmiento’s involvement in illegal hunting activities, namely
hunting at night, hunting from a vehicle, and hunting by using
artificial light, because: 1) the road was “notorious” for road
hunting, 2) the vehicle had no apparent reason to be on that road,
and 3) the van passed his location very slowly, proceeded south out
of view and, after a few minutes returned past his location
traveling “a little bit faster.” Warden Cervantez testified that
this conduct conforms with the typical pattern of illegal road
hunters who, according to Warden Cervantez,
Go down that one way. They are hunting, using
the lights of the vehicle so they might be
going down slow. Once they find their target,
whatever it is ... they killed it, put it in
the vehicle and get out of there as fast as
they can in case somebody heard a shot or
somebody saw them.
The facts in this case, as articulated by Warden Cervantez for
justifying his suspicion of criminal activity, do not meet the
Fourth Amendment standard, when compared to the criminal profile he
described above.
That standard is that “[a]n investigatory stop must be
justified by some objective manifestation that the person stopped
is, or is about to be, engaged in criminal activity.” United
States v. Cortez, 449 U.S. 411, 417 (1981) (emphasis added).
“Based upon that whole picture the detaining officers must have a
particularized and objective basis for suspecting the particular
person stopped of criminal activity.”
Id. at 417-18 (emphasis
added). In making this assessment we must look to the “totality of
the circumstances” and are, thus, precluded from looking at
individual facts “in isolation from each other.” United States v.
Arvizu,
534 U.S. 266, 274 (2002). Finally, we may consider only
facts that were known to the officer at the time of the stop.
United States v. Morales,
191 F.3d 602, 604 (5th Cir. 1999).
It seems apparent from the record, and particularly his
testimony, that Warden Cervantez’s suspicions that Hernandez-
Sarmiento was involved in illegal road hunting do not meet the
Fourth Amendment standard for reasonable suspicion. First, Warden
Cervantez heard no gunshot and did not observe Hernandez-Sarmiento
use her headlights in any unusual way. Second, Warden Cervantez’s
observation that Hernandez-Sarmiento traveled south very slowly and
then returned north past his location traveling only “a little bit
faster” is inconsistent with his earlier description of the profile
of the illegal hunter: that a hunter “get[s] out of there as fast
as they can.” Third, with respect to his testimony that he was
suspicious because Highway 349 is notorious for illegal hunting,
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the record positively shows that no citations have been issued on
Highway 349 in the last five years for the illegal hunting
activities suspected here (hunting at night, hunting from a
vehicle, and hunting by using artificial light). Still further,
Warden Cervantez’s justification for his suspicion in the absence
of citations (the presence of animal carcasses near the highway)
does not support his articulated modus operandi for poachers --
kill an animal, put it in the vehicle and then quickly flee the
area.
In the light of our discussion above, the totality of the
circumstances is now that Hernandez-Sarmiento drove her van down a
lonely road and returned a few minutes later going in the opposite
direction. Although this may have raised some suspicion in the
mind of a reasonable officer, it does not arouse suspicion of
criminal activity in the totality of this case. If this were the
case the officer could stop any driver on that road for simply
turning around and heading in the opposite direction. Such an
unwarranted stop by the police is supported by nothing more than a
“hunch”, see Terry v. Ohio, 392 U.S. 1, 27 (1968), and in my
opinion is barred by the Fourth Amendment.
For these reasons, I respectfully dissent.
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