Filed: Jul. 11, 2012
Latest Update: Mar. 26, 2017
Summary: Case: 11-40944 Document: 00511917167 Page: 1 Date Filed: 07/11/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 11, 2012 No. 11-40944 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee v. DANIEL BUSTAMANTE, Defendant–Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-243-1 Before KING, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Defendant–Appellant Dan
Summary: Case: 11-40944 Document: 00511917167 Page: 1 Date Filed: 07/11/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 11, 2012 No. 11-40944 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee v. DANIEL BUSTAMANTE, Defendant–Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:11-CR-243-1 Before KING, PRADO, and HAYNES, Circuit Judges. PER CURIAM:* Defendant–Appellant Dani..
More
Case: 11-40944 Document: 00511917167 Page: 1 Date Filed: 07/11/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 11, 2012
No. 11-40944 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee
v.
DANIEL BUSTAMANTE,
Defendant–Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:11-CR-243-1
Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant–Appellant Daniel Bustamante entered a conditional guilty plea
to attempting to export a firearm from the United States to Mexico. He reserved
his right to appeal the district court’s order denying his motion to suppress the
firearm found in his truck. Bustamante alleges that the police violated the
Fourth Amendment by stopping his truck without reasonable suspicion. We
determine that the police had reasonable suspicion to stop Bustamante’s truck,
and therefore affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-40944 Document: 00511917167 Page: 2 Date Filed: 07/11/2012
No. 11-40944
I. FACTUAL AND PROCEDURAL BACKGROUND
Around 3:00 PM on January 18, 2011, the Laredo Police Department
(“LPD”) Communications Division received a tip from a male telephone caller
who refused to identify himself. The tipster stated that a bald, heavy-set man
with tattoos on his arms was planning to transport assault rifles to “Los Zetas”1
in Mexico in a blue pickup truck with license plate number AW7-8923. The
truck would cross into Mexico via a ranch located off Pico Road. The tipster
further stated that the truck was currently located at the intersection of San
Eduardo Avenue and Garza Street. Although the tipster refused to identify
himself, his cell phone number was collected by the Communications Division.
LPD Officer Roberto Garcia heard the tip broadcast over the radio from his
office. He called dispatch to confirm the license plate number, and also received
from dispatch the tipster’s cell phone number. The license plate check revealed
that the blue truck was registered to Bustamante; a criminal check on
Bustamante revealed that he had previously been identified as a member of the
Mexican Mafia prison gang and had been stopped once while driving the same
blue truck. Garcia called the tipster, who repeated the tip. He then transmitted
the results of the licence plate and criminal checks to the LPD officers who were
looking for the truck near the areas identified by the tipster. Another LPD
officer reported over the radio that he knew that the Bustamante family owned
a ranch off Pico Road. The LPD officers could not locate the truck. Garcia called
the tipster a second time, was told by the tipster that the truck had moved to
San Dario Street, and Garcia himself traveled to that location. Still, he could not
locate the truck. He called the tipster a third time; it was now about 4:00 PM.
During this call, the tipster stated that he personally knew Bustamante and
another individual, Javi, who involved in the weapons transport, and that he
1
Los Zetas are a Mexican drug cartel. The Reach of Mexico’s Drug Cartels, N.Y. Times,
Sept. 11, 2011, http://www.nytimes.com/interactive/2009/03/22/us/BORDER.html.
2
Case: 11-40944 Document: 00511917167 Page: 3 Date Filed: 07/11/2012
No. 11-40944
was present when the weapons were loaded into the truck; he further stated that
he would try to find the truck, which had been relocated until darkness fell, and
would call Garcia with an update.
Garcia went home around 5:00 PM, when his shift ended. About 6:00 PM,
he received a call from the tipster. In this phone call, the tipster stated that the
truck was parked next to a red truck in front of Javi’s house on Benavidez Street
near the intersection with San Eduardo Avenue and Bustamante was waiting
until darkness to bring the weapons to the ranch off Pico Road. Garcia called
one of his supervisors to inform him of the tipster’s information and to see if a
plain-clothes officer could be sent to that location. He then relayed the
information over the radio to dispatch and LPD units near Benavidez/San
Eduardo. A plain clothes officer confirmed that the blue truck was parked next
to a red truck at the location given by the tipster. LPD Lieutenant Montemayor
advised over the radio not to approach the truck or the residence. A BOLO (“be
on the lookout”) report for the blue truck was broadcast over the radio; the
BOLO included Bustamante’s name, the license plate number, that the truck
was transporting weapons, and that it was headed for Pico Road.
LPD Officer Victor Barroso, whose normal patrol district included Pico
Road, heard the BOLO over the radio and parked his police car just south of Pico
Road to watch for Bustamante’s truck. Because the BOLO advised that there
were likely weapons in the truck and that the driver of the truck was a member
of the Mexican Mafia, Barroso intended—if he saw the truck—to make a “felony
stop.”2 About 7:00 PM, a few minutes after parking his car, Barroso saw the blue
truck. He pulled behind the truck, confirmed the license plate number over the
radio, and requested backup. “Seconds later,” a police car driven by LPD Officer
Gerardo Jalomo arrived and Barroso initiated the stop. Bustamante
2
A felony stop preserves officer safety by requiring a backup patrol car to be on the
scene before the stop is initiated; further, the officers approach the car with weapons drawn.
3
Case: 11-40944 Document: 00511917167 Page: 4 Date Filed: 07/11/2012
No. 11-40944
immediately pulled over the truck. Barroso approached the driver’s side of the
truck with his 12-gauge shotgun drawn and instructed Bustamante not to move.
Montemayor had arrived at the scene by this time and removed Bustamante
from his truck, handcuffed him, and placed him in Jalomo’s car. Barroso looked
in the back of the truck and found a green rifle case on the backseat, containing
two assault rifles. Bustamante was then placed under arrest.
Bustamante moved to suppress the evidence found in the truck, arguing
that Barroso pulled over the truck without reasonable suspicion in violation of
the Fourth Amendment. Garcia, Barroso, Jalomo, and an ATF agent testified
at the suppression hearing. In a written order, the district court denied
Bustamante’s motion. Bustamante entered a conditional guilty plea, reserving
the right to appeal the district court’s denial of his motion to suppress; he timely
appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291. “When the district court denies a motion to
suppress, we review factual findings for clear error and conclusions of law de
novo.” United States v. Gray, 669 F.3d 556, 562 (5th Cir. 2012) (internal
quotation marks omitted). We view the evidence in the light most favorable to
the prevailing party. Id. “Whether specific facts give rise to reasonable
suspicion is a question of law that we review de novo.” Jimenez v. Wood Cnty.,
Tex.,
621 F.3d 372, 379 (5th Cir. 2010).
III. DISCUSSION
A. Reasonable Suspicion Standard
“An investigative vehicle stop is permissible under Terry [v. Ohio, 392 U.S.
1 (1968),] only when the officer has a reasonable suspicion supported by
articulable facts that criminal activity may be afoot.” United States v. Martinez,
486 F.3d 855, 861 (5th Cir. 2007) (internal quotation marks omitted). The
4
Case: 11-40944 Document: 00511917167 Page: 5 Date Filed: 07/11/2012
No. 11-40944
Government bears the burden of proving reasonable suspicion. United States v.
Gomez, 623 F.3d 265, 269 (5th Cir. 2010). Whether an informant’s tip provides
reasonable suspicion depends on various factors: (1) the credibility and
reliability of the informant; (2) the specificity of the information contained in the
tip or report; (3) the extent to which the information in the tip or report can be
verified by officers in the field; and (4) whether the tip or report concerns active
or recent activity, or has instead gone stale. Martinez, 486 F.3d at 861 (internal
quotation marks omitted).
The Supreme Court has evinced a strong distrust of anonymous tips
because the police cannot assess the tipster’s reputation, nor can the police hold
anonymous tipsters responsible if their allegations turn out to be fabricated. Id.
at 862 (citing Florida v. J.L., 529 U.S. 266 (2000)). Nonetheless, “‘there are
situations in which an anonymous tip, suitably corroborated, exhibits sufficient
indicia of reliability to provide reasonable suspicion to make the investigatory
stop.’” Id. at 863 (quoting Alabama v. White,
496 U.S. 325, 327 (1990)); see also
Gomez, 623 F.3d at 269 (“If a tip is provided by an anonymous informant, such
that the informant’s credibility and reliability cannot be determined, the
Government must establish reasonable suspicion based on the remaining
factors.”). We have stated before that “where instant caller identification allows
the police to trace the identity of an anonymous telephone informant, the ready
ability to identify the caller increases the reliability of such tips.” Gomez, 623
F.3d at 269 (internal quotation marks omitted). Under the “collective-knowledge
doctrine” the officer initiating the investigatory stop need not have personal
knowledge of the facts which gave rise to a reasonable suspicion, provided the
initiating officer acted in reliance upon information from other officers with such
personal knowledge. See United States v. Ibarra-Sanchez,
199 F.3d 753, 759–60
(5th Cir. 1999).
5
Case: 11-40944 Document: 00511917167 Page: 6 Date Filed: 07/11/2012
No. 11-40944
B. Barroso had Reasonable Suspicion
Barroso had reasonable suspicion because the tipster provided specific,
timely, and predictive information that was verified by officers in the field.
Although the tipster here was anonymous—in that he refused to give his
name—his credibility and reliability were enhanced by the LPD’s collection of
his phone number and the tipster’s subsequent phone calls with Garcia, see
Gomez, 623 F.3d at 269, as well as the tipster’s explanation that he knew about
the weapons because he personally knew Bustamante and was present when the
weapons were loaded into the truck, see J.L., 529 U.S. at 271. To be sure, the
tipster twice gave Garcia information about the truck’s location that could not
be verified, but the tipster ultimately updated Garcia on the correct location of
the truck. In addition to the truck’s location, the tipster also provided other
specifics about the truck, such as its color, license plate number, and driver.
Many of these specifics were verified by officers in the field while the truck was
parked on Benavidez Street. Moreover, the tipster correctly predicted that the
truck would depart Benavidez Street in the direction of Pico Road not long after
nightfall. We therefore agree with the district court that the tip provided the
sort of specific, timely, predictive, and up-to-date information that gives rise to
reasonable suspicion. See Martinez, 486 F.3d at 861. Finally, we reject
Bustamante’s argument that Barroso himself needed to have personal
knowledge of the facts that gave rise to reasonable suspicion; it was sufficient
that Barroso stopped Bustamante’s truck in reliance on the BOLO which was
itself supported by Garcia’s reasonable suspicion. See Ibarra-Sanchez, 199 F.3d
at 759.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order denying
Bustamante’s motion to suppress.
AFFIRMED.
6
