           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 27, 2008

                                       No. 07-40326                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ORLANDO BENAVIDES

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
       Orlando Benavides was arrested in Laredo, Texas when police found that
he was transporting crates full of cocaine and marijuana. He moved the district
court to suppress the drugs as evidence against him, arguing that the police had
only discovered the contents of the crates by violating his Fourth Amendment
rights. The district court denied Benavides’s motion and found him guilty after
a brief bench trial. We REVERSE the district court’s denial of this motion,




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-40326

VACATE Benavides’s conviction and sentence, and REMAND for further
proceedings not inconsistent with this opinion.
                                               I.
       On May 7, 2001, Joe Benavides, a member of the Laredo Multi-Agency
Narcotics Task Force, received a tip from an anonymous caller.1 The caller
reported that a pickup truck at a specific address was carrying large wooden
crates and that two individuals were loading the crates with packages or
bundles. The caller also provided a detailed description of the pickup truck,
including its license plate number. The caller did not provide any information
as to the possible contents of the bundles, and Benavides did not obtain any
information about the caller’s location or source of knowledge.
       Benavides informed other officers on the task force about the tip and
began to drive toward the address reported by the anonymous caller. While en
route, he passed a truck matching the description provided by the tip and
followed it in his unmarked vehicle. Benavides also informed responding task
force members over radio that the truck was no longer at the reported address.
       The task force coordinated with the Laredo Police Department in order to
initiate a traffic stop on the truck, although at the time the truck had committed
no traffic violation. A general alert regarding the truck was sent out over radio,
and Officer Roland San Miguel, who was on patrol with a canine in his unit,
responded. Officer San Miguel passed the truck while the truck was heading in
the opposite direction, turned around, and approached the truck from the rear.
The truck moved onto the improved shoulder of the road. Officer San Miguel
turned on his emergency lights and initiated a traffic stop. The driver of the
truck, Oscar Benavides, exited the truck, and Officer San Miguel informed him
that he had been pulled over for driving on the shoulder of the road. Officer San


       1
         Benavides testified that his secretary initially took the call, but the record does not
reflect whether the call was routed to Benavides’s secretary or came in directly.

                                               2
                                    No. 07-40326

Miguel then told Benavides that he was suspected of drug transportation. No
traffic citation was ever issued.
      Members of the task force arrived shortly after Officer San Miguel
initiated the traffic stop. The investigators questioned Benavides about the
contents of the crates in his truck, and Benavides told them that the crates
contained motor parts. Benavides also confirmed the address given by the
anonymous caller. After a disputed amount of time, the investigators presented
Benavides with a search consent form, which he signed. Officer San Miguel’s
drug dog then alerted to the presence of drugs in the crates. The officers opened
the crates and discovered 105 kilograms of cocaine and 318 kilograms of
marijuana contained in bags in the crates.
      Benavides was subsequently charged with conspiracy to possess and
distribute controlled substances.      He attempted to suppress the evidence
acquired at the traffic stop, arguing that his Fourth Amendment rights were
violated because he was stopped without probable cause and he did not
voluntarily give his consent to be searched. The district court found that the
anonymous tip provided probable cause to stop the vehicle and that consent was
voluntarily given. The district court did not rely on Benavides’s putative traffic
violation as a basis for its decision. His motion to suppress denied, Benavides
proceeded to a bench trial on stipulated facts and was found guilty. He now
appeals, arguing that the district court erred in its denial of his motion to
suppress.
                                        II.
                                        A.
      On appeal, “we review the district court's factual findings for clear error
and its legal conclusions de novo. For our review, we may consider all of the
evidence presented at trial, not just that presented before the ruling on the
suppression motion, in the light most favorable to the prevailing party, which in


                                         3
                                  No. 07-40326

this case is the Government.” United States v. Ibarra, 493 F.3d 526, 530 (5th
Cir. 2007) (internal citation omitted).
                                          B.
      We begin our analysis with the stop of Benavides’s vehicle. “The Fourth
Amendment prohibits unreasonable searches and seizures. There is no question
but that the stopping of a vehicle and the detention of its occupants is a ‘seizure’
within the meaning of the Fourth Amendment.” United States v. Shabazz, 993
F.2d 431, 434 (5th Cir. 1993). As such, “searches and seizures of motorists who
are merely suspected of criminal activity are to be analyzed under the framework
established in Terry v. Ohio, 392 U.S. 1 (1968).” Shabazz, 993 F.2d at 434
(emphasis in original). That framework permits “[a]n investigative vehicle stop
. . . only when the officer has a reasonable suspicion supported by articulable
facts that criminal activity may be afoot.” United States v. Jaquez, 421 F.3d 338,
340 (5th Cir. 2005) (internal quotation marks omitted). The government bears
the burden of showing the “minimal level of objective justification” for a
warrantless seizure. See id.
      Here, the Government relies on the anonymous tip as the basis for the
reasonable suspicion justifying Benavides’s seizure. An anonymous tip can
provide such reasonable suspicion, so long as it is reasonable “in light of the
‘totality of the circumstances.’” See United States v. Bolden, 508 F.3d 204, 206
n.2 (5th Cir. 2007) (quoting United States v. Hernandez, 477 F.3d 210, 214 (5th
Cir. 2007)). But, crucially, an anonymous tip must “be reliable in its assertion
of illegality, not just in its tendency to identify a determinate person.” Florida
v. J.L., 529 U.S. 266, 272 (2000).
      The anonymous tip that Joe Benavides received alleged no criminal
activity. It merely described the truck, the truck’s location, and the fact that the
truck was being loaded with unknown cargo. Although the government relies
heavily on the specificity and accuracy of the tip, it can point to no specific

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                                      No. 07-40326

assertion of illegality, much less a verifiable assertion of illegality. The only
further articulation of reasonable suspicion made by Benavides was that the
area in which the truck was loaded was not a warehouse district. Thus, the facts
alleged by the government to support its claim of reasonable suspicion show that
Oscar Benavides and another man put unidentified bundles into crates and
carried out these activities at an address that was not located in a warehouse
district.2   The tip alone therefore alleges only identifying information,
insufficient under J.L. for a finding of reasonable suspicion. See 529 U.S. at
271–72 (finding no reasonable suspicion for seizure where anonymous tip
accurately identifying a person further alleged only that the identified person
was illegally carrying a gun). And the police did not improve on these bare facts
in order to find reasonable suspicion before the traffic stop was made.
                                            C.
       Although it declined to rely on Benavides’s alleged traffic violation before
the district court and in its brief, the government did make a belated assertion
at oral argument that the seizure was independently justified because Benavides
violated a traffic law. The record before us does not permit this conclusion.
       Police officers may stop an automobile when there is probable cause to
believe that a traffic violation has occurred, even if the stop is otherwise
pretextual. See United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir. 1999).
But, “where the supposed traffic infraction that formed the basis for a vehicular
stop in fact was not a violation of state law, there [is] no objective basis for
probable cause justifying the stop.” Id. This court has also recognized that
traffic stops without probable cause and based on traffic violations may be
justified under the Terry framework. E.g., United States v. Sanchez-Pena, 336
F.3d 431, 436–37 (5th Cir. 2003). Under this approach, “whether a traffic stop

       2
        The district court also discussed the fact that these activities occurred in Laredo,
Texas, apparently taking judicial notice of frequent drug-trafficking there.

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                                       No. 07-40326

complies with the Fourth Amendment depends upon two factors: whether the
stop was justified at its inception and whether the Fourth Amendment
intrusions were reasonably related in scope to the circumstance that justified the
interference in the first place.” Id. at 437. And, as discussed above, “[t]he officer
must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant the intrusion.” Id. The
officer’s subjective motives for the stop are irrelevant. Id.
       Texas law explicitly permits a vehicle operator to drive on an improved
shoulder for a variety of purposes so long as “the operation is necessary and may
be done safely.” TEX. TRANSP. CODE § 545.058(a). Driving on an improved
shoulder, without more, is therefore not a violation of a state traffic law. Cf.
United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (finding no probable
cause for a traffic stop when motorist’s activities did not violate any traffic law
cited by the prosecution). Officer San Miguel did not offer—and the record does
not indicate— other facts tending to raise a reasonable suspicion that Benavides
had committed a traffic violation by moving onto the shoulder.3 The record does
not describe any actions that Benavides took that were unsafe or unnecessary
or any other factual basis for why § 545.058(a) would not apply. Indeed, Officer
San Miguel allowed that Benavides’s actions may have been designed to allow
him to pass as he approached from behind, a scenario that § 545.058(a)(5)
explicitly reaches. The absence of such facts in the record requires us to
conclude that the traffic stop here did not comply with the requirements of the
Fourth Amendment.


       3
         During testimony related to the motion to suppress, Joe Benavides referred to Oscar
Benavides in passing as “weaving,” potentially implying that Oscar Benavides changed lanes
multiple times. But the specific factual testimony offered by Officer San Miguel indicates that
Benavides moved onto the improved shoulder only once. And the limited evidence in this
record does not support the government’s later assertions that the stop was justified because
Benavides failed to drive in a single lane, see TEX. TRANSP. CODE § 545.060(a)(1), or failed to
display warning flags on his cargo, see TEX. TRANSP. CODE § 547.382(b).

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                                 No. 07-40326


                                       D.
      As a general matter, “all evidence derived from the exploitation of an
illegal search or seizure must be suppressed, unless the government shows that
there was a break in the chain of events sufficient to refute the inference that
the evidence was a product of the constitutional violation.” Miller, 146 F.3d at
279. And “[c]onsent to search may, but does not necessarily, dissipate the taint
of a fourth amendment violation.” United States v. Chavez-Villarreal, 3 F.3d
124, 127 (5th Cir. 1993).     Evidence obtained due to consent, but after a
constitutional violation, will be admitted only if the consent was voluntary and
if it was an independent act of free will. Id. This latter requirement focuses on
the causal link between the constitutional violation and the subsequently
procured evidence. United States v. Vega, 221 F.3d 789, 801 (5th Cir. 2000). “To
determine whether the causal chain was broken, we consider: (1) the temporal
proximity of the illegal conduct and the consent; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the initial misconduct.”
Chavez-Villarreal, 3 F.3d at 128. The government has the burden of showing
admissibility. Id.
      Here, each of the factors described in Chavez-Villarreal favors suppression.
The district court correctly determined that Benavides had given his consent
shortly after he was illegally detained: The anonymous call was received at
10:00 a.m. and the consent form shows that it was completed at 10:35 a.m. Cf.
id. (finding first factor favored suppression when less than fifteen minutes
elapsed between illegal stop and consent for search). The record gives no
indication of intervening circumstances between the illegal stop and Benavides’s
consent to the search. Instead, four members of the narcotics task force arrived
immediately after Officer San Miguel stopped Benavides, identified themselves
as narcotics officers, and sought Benavides’s consent.       Although they told

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                                  No. 07-40326

Benavides he could refuse consent, the record does not show that he was told
that he was free to leave, and the circumstances of the stop indicate that he
would have had no reason to believe that this option was available. See United
States v. Santiago, 310 F.3d 336, 343 (5th Cir. 2002); United States v. Jones, 234
F.3d 234, 243 (5th Cir. 2000). And, finally, the record plainly shows that the
purpose for stopping Benavides was to search Benavides’s truck for drugs. The
government has not shown any way in which the consent to search was not
contemporaneous with the constitutional violation. See Santiago, 310 F.3d at
343. Accordingly, Benavides’s consent does not “dissipate the taint” of the initial
illegal seizure.
                                       III.
      Officer San Miguel seized Oscar Benavides in violation of the Fourth
Amendment. This violation was not cured by the consent form that Benavides
signed. Consequently, the district court should have granted Benavides’s motion
to suppress. We accordingly REVERSE the district court’s denial of the motion
to suppress, VACATE Benavides’s conviction and sentence, and REMAND for
further proceedings not inconsistent with this opinion.
                                   REVERSED, VACATED, AND REMANDED




                                        8
                                   No. 07-40326

EDITH BROWN CLEMENT, Circuit Judge, dissenting:
      I respectfully dissent from the majority’s reversal of the denial of
Benavides’s motion to suppress, because I believe that the “totality of the
circumstances” provided reasonable suspicion to stop Benavides’s vehicle.
      The majority’s holding that the stop was unconstitutional relies on
Florida v. J.L., in which an anonymous caller reported to the police that a
young black male standing at a particular bus stop and wearing a plaid shirt
was carrying a gun. 529 U.S. 266, 268 (2000). The police arrived at the bus
stop, identified a black male with a plaid shirt, frisked him, and seized a gun
from his pocket. Id. The defendant was 15 years-old at the time of his arrest,
and he was charged under state law with carrying a concealed firearm
without a license and possessing a firearm while under the age of eighteen.
Id. at 269. The Supreme Court held that the anonymous tip could not
support a finding of reasonable suspicion in that case, because it was reliable
only “in its tendency to identify a determinate person,” but not “in its
assertion of illegality.” Id. at 272.
      The tip received by the police in J.L. was entirely bare of any element
linking the identified individual with criminal activity. The only allegation
raised by the J.L. tipster was that the individual was in possession of a gun,
an act that is not inherently illegal. This court has distinguished reasonable
suspicion of gun possession, which, by itself, cannot justify an investigative
stop, from “reasonable suspicion concern[ing] the possession of narcotics, an
act that is per se illegal.” United States v. Roch, 5 F.3d 894, 899 (5th Cir.
1993). In this case, even though the tipster did not explicitly refer to the
presence of narcotics in the crates, the context of the call clearly indicated
that he was reporting drug-related activity. At oral argument, the parties
were unable to explain how the call got to the desk of Joe Benavides, a


                                        9
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member of a police task force specializing in narcotics law enforcement.
Nevertheless, either the call was transferred to the Laredo Multinarcotics
task force by some other police entity, such as a 9-1-1 operator—in which case
the tipster necessarily must have indicated during this initial conversation
that he was suspecting narcotics activity; or the tipster directly called the
Laredo Multinarcotics task force—in which case, Joe Benavides could not
only legitimately conclude that the tip concerned narcotics-related conduct,
but also assume that the tipster had some experience in reporting this type of
activity. See United States v. Hernandez, 477 F.3d 210, 215 (5th Cir. 2007)
(noting that “[t]he 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”). In either case, Joe
Benavides was obviously aware that the tipster was reporting drug-
trafficking activity and had no reason to delay his verifying the information
with further questioning.1 The majority opinion fails to consider the nature of
the information reported and the context in which the call was received,
which distinguish this case from J.L. In summarily concluding that the tip
contained only “identifying information” insufficient to provide reasonable
suspicion for the stop under J.L., it ignores the spirit of the “totality of the
circumstances” approach, which requires this court to “eschew[] bright-line
rules, instead emphasizing the fact-specific nature of the . . . inquiry.” United
States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (internal quotation
omitted).




       1
         In fact, had Joe Benavides prolonged the call, he may not have been able to follow up
on the information reported, because the pick-up truck had left the location identified by the
tipster and was spotted by Joe Benavides while en route to that location.

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                                 No. 07-40326
      “Instead of adopting any bright line rule, courts must examine the
factual circumstances surrounding each anonymous phone tip to determine
whether the police reasonably could have considered it to be sufficiently
reliable information as a basis for their actions.” United States v. Casper, No.
06-11381, 2008 WL 2779268, at *7 (5th Cir. July 18, 2008) (Dennis, J.,
concurring). The “factual circumstances” typically considered by this
court—and which the majority fails to examine—include
      the credibility and reliability of the informant, the specificity of
the   information contained in the tip or report, the extent to which the
      information in the tip or report can be verified by officers in the
      field, and whether the tip or report concerns active or recent
      activity, or has instead gone stale.
United States v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999). Where the tip
was anonymous, as here, the police have no means of assessing the
“credibility and reliability of the informant.” Id. Nevertheless, there are
situations in which an anonymous tip exhibits “sufficient indicia of reliability
to provide reasonable suspicion to make the investigatory stop,” Alabama v.
White, 496 U.S. 325, 327 (1990), particularly where, as here, all of the other
Gonzalez factors are satisfied. See Casper, 2008 WL 2779268, at *4 (noting
that “[w]here the tip is anonymous, the credibility and reliability of the
informant cannot be determined, and the government must establish
reasonable suspicion based on some or all of the other factors”). The
information provided by the tipster was very specific, and included a detailed
description of the pick-up truck and its license plate number; every element of
that description was validated by Joe Benavides before the vehicle was
stopped. In addition, the tipster was reporting ongoing events as he was
observing them, which gives additional credence to the tip. See United States
v. Bolden, 508 F.3d 204, 206 n.2 (5th Cir. 2007) (holding that reasonable
suspicion to stop individuals involved in a shooting was warranted when “the


                                       11
                                  No. 07-40326
tip was specific as to location of the shooting and dealt with recent or even
ongoing activity, and the officers could verify the information, because they
personally heard the gunshots” (internal quotations omitted)). In light of
these factors, I believe that the tip, though anonymous, presented sufficient
“indicia of reliability” to form the basis for the stop of Benavides’s vehicle.
      Finally, the majority notes, but fails to take into account, two other
elements that bolster the police’s reasonable suspicion. First, Joe Benavides
testified that the activity reported struck him as suspicious because the truck
was allegedly being loaded at a location that is not in a warehouse area. The
majority should have given this testimony of a police officer who specialized
in narcotics work the “due weight” it is entitled to in light of his “experience
and expertise.” Ornelas v. United States, 517 U.S. 690, 699 (1996). Second,
the district court, in denying Benavides’s motion to suppress, considered the
fact that the activities reported were taking place in Laredo, Texas, a city
located near the Mexican border—presumably, an area where drug-
trafficking is frequent. The majority notes this observation in a footnote
without explaining how it affects its analysis, even though it is well-
established that “[t]he characteristics of the area in which the vehicle was
encountered and the area’s proximity to the border are important
considerations in the reasonableness determination.” Hernandez, 477 F.3d at
213; see also United States v. Mendenhall, 446 U.S. 544, 563–64 (1980)
(recognizing that “[l]aw enforcement officers may rely on the characteristics of
the area” to form their “reasonable suspicion” of criminal activity (internal
quotation omitted)). Though these elements “by themselves may appear
innocent,” they are combined here with a highly specific tip corroborated by
the police; this falls squarely within the ambit of situations in which all
factors considered “in the aggregate rise to the level of reasonable suspicion.”
United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999).


                                        12
                                       No. 07-40326
       In light of the foregoing, I disagree with the majority’s holding that the
investigative stop of Benavides’s vehicle was a violation of the Fourth
Amendment. Therefore, the search of the truck bed, which uncovered the
narcotics evidence at issue, was not tainted by a prior unconstitutional stop.
The Fourth Amendment permits police officers who have lawfully detained a
vehicle to search it without first obtaining a warrant so long as they “have
either the consent of the owner to conduct the search or probable cause to
believe that the vehicle contains contraband or other evidence of a crime.”
United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003).
Shortly after Benavides was pulled over, Officer San Miguel conducted a
“canine sniff” by a narcotics-detection dog around the exterior of a vehicle.
This “free-air search” does not constitute a “search or seizure” under the
Fourth Amendment and can be conducted without consent. United States v.
Duffaut, 314 F.3d 203, 208 (5th Cir. 2002). And “[o]nce a dog has alerted to
the presence of narcotics, agents have sufficient probable cause to conduct a
search of the vehicle.” Id. Therefore, after the dog alerted to the crates
loaded in the truck bed, the police had probable cause to search the truck and
open the crates, and Benavides’s consent was not required.2
       For these reasons, I would affirm the district court’s denial of
Benavides’s motion to suppress.


       2
         Because the search of Benavides’s vehicle was justified by probable cause, I do not
reach the issue of whether Benavides’s consent to the search was voluntary. Nevertheless, it
is worth noting that Benavides’s argument that his consent was involuntarily given is
inconsistent with his testimony at the suppression hearing, where he stated that he had
enough education to read and understand the consent form, that he in fact understood the
form, and that he knew he had the right to refuse to sign it. See United States v. Jones, 234
F.3d 234, 242 (5th Cir. 2000) (noting the six factors typically examined by this court in
assessing voluntariness of consent: “1) the voluntariness of the defendant’s custodial status;
2) the presence of coercive police procedures; 3) the extent and level of the defendant’s
cooperation with the police; 4) the defendant’s awareness of his right to refuse consent; 5) the
defendant’s education and intelligence; and 6) the defendant’s belief that no incriminating
evidence will be found”).

                                              13
