Anonymous Tip Created Reasonable Suspicion for Roving Border Patrol Stop

United States v. Hernandez, No. 05-41611 (5th Cir. Jan. 24, 2007) (Higginbotham, Smith, DeMoss)

First, a little geography. As you likely already know, Interstate 35 is a major artery that runs northeast from the border town of Laredo, Texas. Approximately 15 miles north of Laredo, U.S. Highway 83 splits off from 35 and heads north. There's a Border Patrol station just south of the split. And just north of the split, on Highway 83, is the Long Branch Saloon. According to the opinion, 83 is a "notorious alien smuggling route." And the Long Branch Saloon is a "well-known rendezvous spot" where aliens who have traveled on foot around the checkpoint will "lay up" and wait for smugglers who will take them to points north via Highway 83.

One evening an anonymous tipster called the checkpoint and claimed that a red pickup and a red Suburban had just picked up a group of illegal aliens at the Long Branch and headed north on 83. A few agents who were out on patrol went looking for the vehicles. After a few minutes, Agent Parra came up behind a red Suburban, which apparently pulled over on its own accord. Agent Parra spoke to the driver, Esteban Hernandez-Ramirez, for a few moments and eventually let him go after a registration check came back clean. About that same time, Agent Lopez pulled over a red pickup ten miles north of the saloon. The driver, Rosa Maria Hernandez, had four illegal aliens in the truck. A third agent who was involved in all this figured that Rosa and Esteban might be married, so he radioed Parra to pull Esteban over again. Parra did so, and Esteban admitted that he and Rosa were smuggling aliens.

Rosa and Esteban were charged with aiding and abetting the transportation of two illegal aliens for financial gain. They both filed motions to suppress, which the district court denied, and were convicted at a bench trial.

Rosa appealed the denial of her suppression motion, arguing that her stop was based on nothing but the anonymous tip and that the tip could not justify the stop because it amounted to nothing more than a bare, uncorroborated allegation. The court disagreed:

We conclude that reasonable suspicion supported the stop. These events played out in an area close to the border and a notorious alien smuggling route. Moreover, the tip itself was not bare. The tipster call was a rifle-shot to the nearest checkpoint facility, out of which the roving patrols were based, as opposed to any other office in the Laredo Sector, suggesting familiarity with the Border Patrol and knowledge and experience with reporting illegal activity. The tipster claimed to have seen the smuggling firsthand just moments before the call, and the Long Branch Saloon, it will be recalled, was next to a well-known lay-up area for illegal aliens, facts which point to a knowledgeable tipster. There was more. The tip provided the color, number, and type of the vehicles - a red truck and a red Suburban - and that description was validated when Lopez encountered Hernandez. The totality of the circumstances provided reasonable suspicion to stop Maria Hernandez.

Slip op. at 8.

This is a very disappointing decision. Despite what the court says, there's nothing more here than a bare, uncorroborated allegation. Even assuming that the facts demonstrate a "knowledgeable" tipster, there's still nothing that corroborates the tipster's allegation of criminality, other than the vehicles' presence on a "notorious" smuggling route and their proximity to a "well-known" staging area for alien smuggling. The problem is that those factors describe virtually every vehicle within at least 50 miles of the border. So in the end, all the agents really had was an anonymous accusation that these two vehicles were smuggling aliens. That shouldn't be enough to justify a warrantless seizure.