     Case: 16-40817   Document: 00513972053       Page: 1   Date Filed: 04/28/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                   No. 16-40817                            FILED
                                                                       April 28, 2017
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk

             Plaintiff–Appellee,

v.

CECILIO ANTONIO BROCA-MARTINEZ,

             Defendant–Appellant.




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


Before KING, JOLLY, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Defendant–Appellant Cecilio Broca-Martinez appeals the district court’s
denial of his motion to suppress. While on patrol in December 2015, Officer
Juan Leal began following Broca-Martinez’s vehicle because it matched a
description Homeland Security agents had provided the Laredo Police
Department (“LPD”). Officer Leal stopped Broca-Martinez after a computer
search indicated the vehicle’s insurance status was “unconfirmed.” The stop
led to the discovery that Broca-Martinez was in the country illegally and that
he was harboring undocumented immigrants at his residence. Broca-Martinez
entered a conditional guilty plea to one count of conspiracy to transport
undocumented aliens in violation of 8 U.S.C. § 1324. On appeal, he contends
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that there was no reasonable suspicion justifying the initial stop. Because we
find there was reasonable suspicion, we AFFIRM.
                             I. BACKGROUND
      On December 2, 2015, Broca-Martinez was stopped by Officer Leal in
Laredo, Texas. That day, Homeland Security Investigations (“HSI”) received a
tip that undocumented immigrants were being housed at a residence on
Zacatecas Avenue in Laredo. While surveilling the residence, HSI agents saw
two men leave and enter a gray Nissan Altima. HSI subsequently notified the
LPD to have its officers “be on the lookout” for the vehicle. After receiving a
radio transmission to “be on the lookout” for this vehicle, Officer Leal saw an
Altima that matched the description. He followed the vehicle and entered its
license plate number into an “in-vehicle computer” database designed to return
vehicle information such as insurance status. The computer indicated the
insurance status was “unconfirmed.” Based on his experience using this
system, Officer Leal concluded that the vehicle was likely uninsured—a
violation of Texas’s driver financial responsibility law. Official Leal then
stopped the vehicle. After being stopped, Broca-Martinez gave his name to
Officer Leal and admitted he was in the United States illegally. While they
waited for HSI agents to arrive, Officer Leal issued Broca-Martinez a citation
for violating the insurance requirement and driving without a license.
      When HSI agents arrived, they interviewed Broca-Martinez. The agents
obtained verbal consent from Broca-Martinez to search the Zacatecas Avenue
residence, where fourteen undocumented immigrants were being sheltered. On
December 22, 2015, Broca-Martinez was indicted by a grand jury on three
counts of conspiring to harbor illegal aliens in violation of 8 U.S.C. § 1324.
Broca-Martinez filed a motion to suppress evidence on January 25, 2016. He




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                                      No. 16-40817
argued there was no reasonable suspicion justifying the initial stop and that
the exclusionary rule barred all evidence obtained as a result of the stop. 1
       Officer Leal testified to the following at a hearing on the motion to
suppress: At the time of the stop, Leal knew the radio-transmission instruction
involved a Homeland Security investigation but was unaware of any details.
Upon seeing a vehicle that matched the given description, he ran the “license
plates through what is called the NCIC/TCIC system, which gives a return on
the vehicle, make, model, [and] year” as well as “a VIN number” and “a
confirmation to see if the vehicle is insured.” Officer Leal has in the past
“performed multiple traffic stops for vehicles not having insurance” and was
familiar with the Texas law requiring drivers to have liability insurance. Leal
did not stop the vehicle because of Broca-Martinez’s undocumented status—a
fact he did not know—but because he believed Broca-Martinez was uninsured.
He explained that when he types a license plate number into the NCIC/TCIC
system, it will either report “insurance confirmed” or “unconfirmed,” and after
getting a response he knows, “with the knowledge and experience of working,”
whether the vehicle is uninsured.
       During the stop, Officer Leal did not ask for proof of insurance. He stated
that he “already knew that the vehicle wasn’t insured” based on the
“unconfirmed” status generated by the computer. However, the district court
questioned why Officer Leal did not seek to confirm the computer’s report,
asking specifically whether “reports are sometimes inaccurate.” Broca-
Martinez responded: “For the most part, no.” Later, Broca-Martinez’s attorney
pressed Officer Leal on the “unconfirmed” status:



       1 In a separate motion, Broca-Martinez raised a Miranda violation. The district court
denied both motions to suppress. However, Broca-Martinez does not address the Miranda
issue in his brief.

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      Q: Officer Leal, you said that the information you got on the insurance
      is that it was unconfirmed?
      A: Yes.
      Q: So, in other words, he could have or not have insurance, correct?
      A: No.
      Q: It’s unconfirmed?
      A: Yes.
      The district court denied Broca-Martinez’s motion to suppress. Broca-
Martinez entered a conditional plea to one count of conspiracy to transport
undocumented aliens in violation of 8 U.S.C. § 1324. Broca-Martinez preserved
his right to appeal the district court’s denial of his motion to suppress. On June
8, 2016, Broca-Martinez was sentenced to twelve months and one day
imprisonment. He timely appealed.
           II. STANDARD OF REVIEW AND JURISDICTION
      “In reviewing a district court’s denial of a motion to suppress, we review
the district court’s findings of fact for clear error and its conclusions of law de
novo.” United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005).
“Whether an officer had reasonable suspicion to support a stop is treated as a
question of law.” United States v. Castillo, 804 F.3d 361, 364 (5th Cir. 2015).
Nonetheless, this Court views the evidence “in the light most favorable to the
prevailing party in the district court—in this case, the Government.” Id. The
district court had jurisdiction under 18 U.S.C. § 3231, and this Court has
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                               III. DISCUSSION
      Under Texas law, “[a] person may not operate a motor vehicle in [Texas]
unless financial responsibility is established for that vehicle through” either a
“motor vehicle liability insurance policy” or other means such a surety bond, a
deposit, or self-insurance. Tex. Transp. Code Ann. § 601.051. Violating this
statute is a misdemeanor. Id. § 601.191. At issue in this case is whether Officer


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                                      No. 16-40817
Leal had reasonable suspicion that Broca-Martinez was in violation of this
statute. 2
       The Fourth Amendment protects individuals against warrantless
searches and seizures. U.S. Const. amend. IV. It “applies to seizures of the
person, including brief investigatory stops such as the stop of the vehicle here.”
United States v. Cortez, 449 U.S. 411, 417 (1981). When a vehicle is stopped,
the officer “must have a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” Id. at 417–18. This “reasonable
suspicion exists “when the officer can point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably
warrant the search and seizure.” Lopez-Moreno, 420 F.3d at 430. And while the
officer must have more than a “mere hunch” that the person stopped is engaged
in illegal activity, “reasonable suspicion need not rise to the level of probable
cause.” Id. Indeed, it requires only “‘some minimal level of objective
justification’ for making the stop.” Castillo, 804 F.3d at 367 (quoting United
States v. Sokolow, 490 U.S. 1, 7 (1989)).
       We have not yet addressed whether a state computer database indication
of insurance status may establish reasonable suspicion. However, several other
circuits have found that such information may give rise to reasonable suspicion
as long as there is either some evidence suggesting the database is reliable or
at least an absence of evidence that it is unreliable.
       In United States v. Cortez-Galaviz, 495 F.3d 1203 (10th Cir. 2007), the
Tenth Circuit encountered similar facts and affirmed the denial of a motion to
suppress. Id. at 1204. In that case, a Drug Enforcement Agency agent stopped
a vehicle after inputting its license plate information into a computer database


       2Broca-Martinez acknowledges that the only reason for the stop was a traffic violation
and that Officer Leal “had no information regarding any suspicion of any criminal activity by
the passengers” in the vehicle.
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                                    No. 16-40817
and receiving     the   following    notification:   “INSURED/Not Found:          AS
OF/9/30/2005 Recommend request proof of insurance.” Id. The court found this
information was “particularized and objective” and “suggestive of a traffic
violation.” Id. at 1206. While acknowledging that the message “did not as
definitively indicate criminal activity as a ‘no’ response,” it also did not “equate
to an exculpatory ‘yes,’ and the suggestive ambiguity of the particularized and
objective information [the officer] had at hand justified his decision to warrant
a brief traffic stop.” Id. Like Broca-Martinez, the defendant in Cortez-Galaviz
argued that the stop was not justified because there were alternative means of
complying with the state insurance law. Id. at 1207. But the Tenth Circuit
found that argument “overstate[d] the requirements for reasonable suspicion
under the Fourth Amendment.” Id; see also United States v. Miranda-
Sotolongo, 827 F.3d 663, 669 (7th Cir. 2016) (“Reasonable suspicion . . . does
not require the officer to rule out all innocent explanations of what he sees.”).
Additionally, although the defendant in Cortez-Galaviz challenged the
reliability of the computer database, the court found limited evidence of
unreliability, especially when viewed in the light most favorable to the
government. 495 F.3d at 1208.
      By contrast, the Tenth Circuit reached a different conclusion in United
States v. Esquivel-Rios, 725 F.3d 1231 (10th Cir. 2013), where there was
evidence the database was unreliable. In that case, a Colorado state trooper
stopped a vehicle after inquiring into the validity of its temporary registration
tag. Id. at 1234. Even though the tag “looked genuine,” the trooper “called in
the tag number to a dispatcher who soon replied ‘that’s a negatory on record,
not returning.’” Id. The trooper stopped the vehicle solely based on that
information and found illegal drugs after obtaining consent for a search. Id. at
1234–35. On appeal, the Tenth Circuit found this case distinguishable from
Cortez-Galaviz and other cases in which “the record suggested no reason to
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                                       No. 16-40817
worry about the database’s reliability.” Id. at 1235. Here, the dispatcher
provided critical testimony that “Colorado temp tags usually don’t return,”
which the court regarded as “a piece of evidence our cases haven’t confronted
before: evidence admitted by a district court suggesting that the database on
which the officer relied to justify his stop might bear a real problem.” Id.
(emphasis in original).
       Cases from the Seventh, Sixth, and Eighth Circuits confronting similar
fact patterns are generally consistent with the reasoning in Cortez-Galaviz and
Esquivel-Rios. See Miranda-Sotolongo, 827 F.3d at 671 (finding reasonable
suspicion established when the database showed no vehicle registration record,
“at least in the absence of evidence that [the officer] could not reasonably rely
on the absence of a registration record to support an investigative stop”);
United States v. Sandridge, 385 F.3d 1032, 1036 (6th Cir. 2004) (concluding
there was reasonable suspicion for a stop when license plate check three weeks
prior had indicated the driver was driving without a valid license); United
States v. Stephens, 350 F.3d 778, 779 (8th Cir. 2003) (holding that when
database check showed license plates were “not on file,” there was reasonable
suspicion to stop the vehicle). 3
       Broca-Martinez relies only on state court cases to support his argument.
See Gonzalez-Gilando v. State, 306 S.W.3d 893, 896–97 (Tex. App.—Amarillo



       3  A district court in Texas also recently found reasonable suspicion for a vehicle stop
when a computer database search returned an “unconfirmed” insurance status. United States
v. Vela, No. 2:15-CR-429, 2016 WL 305219, at *1–2 (S.D. Tex. Jan. 25, 2016). In that case, an
officer typed the vehicle’s license plate into a Mobile Data Terminal (“MDT”) to determine
insurance status and received the “unconfirmed” notification. Id. at *1. At a hearing on the
motion to suppress, two officers “testified that they regularly use[d] the MDT to determine if
a vehicle is insured, and such a search will result in either a ‘confirmed’ or an ‘unconfirmed’
insurance status.” Id. They further testified that “[i]n their experience, 80% to 85% of the
vehicles that have an ‘unconfirmed’ insurance status do not have valid insurance” and that
while “unconfirmed” occasionally means the vehicle was insured very recently, the database
was generally accurate and reliable. Id.
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2010, pet. ref’d) (finding database information insufficient to establish
reasonable suspicion because there was no “evidence developing the source of
the information comprising the database, explaining what was meant when
insurance information was unavailable, . . . [or] illustrating the accuracy of the
database”); State v. Daniel, 446 S.W.3d 809, 815 (Tex. App.—San Antonio 2014,
no pet.); Contraras v. State, 309 S.W.3d 168, 173 (Tex. App.—Amarillo 2010,
pet. ref’d). 4 But although states may “impos[e] more stringent constraints on
police conduct than does the Federal Constitution,” this does not dictate our
Fourth Amendment analysis. California v. Greenwood, 486 U.S. 35, 43 (1988).
Even so, Broca-Martinez’s case is distinguishable from Gonzalez-Gilando;
here, there was testimony regarding Officer Leal’s experience with the
database and suggesting the system was reliable.
       We agree with the other circuits that have confronted this question. A
state computer database indication of insurance status may establish
reasonable suspicion when the officer is familiar with the database and the
system itself is reliable. If that is the case, a seemingly inconclusive report such
as “unconfirmed” will be a specific and articulable fact that supports a traffic
stop. Lopez-Moreno, 420 F.3d at 430. Viewed in the light most favorable to the
government, Officer Leal’s testimony provides sufficient support for the
reliability of the database. Officer Leal explained the process for inputting
license plate information, described how records in the database are kept, and
noted that he was familiar with these records. He explained that “with the


       4 Notably, some unpublished state court opinions have declined to follow Gonzalez-
Gilando and favor the government’s position. See Swadley v. State, No. 02-15-00085-CR, 2016
WL 7241564, at *6 (Tex. App.—Fort Worth Dec. 15, 2016, no pet.) (mem. op., not designated
for publication); Tellez v. State, No. 09-10-00348-CR, 2011 WL 3925627, at *3 (Tex. App.—
Beaumont Aug. 14, 2011, no pet.) (mem. op., not designated for publication); Short v. State,
No. 09-10-00489-CR, 2011 WL 3505611, at *3 (Tex. App.—Beaumont Aug. 10, 2011, no pet.)
(mem. op., not designated for publication).

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knowledge and experience of working,” he knows the vehicle is uninsured when
an “unconfirmed” status appears because the computer system will either
return an “insurance confirmed” or “unconfirmed” response. When Broca-
Martinez’s attorney questioned the system’s reliability, Officer Leal confirmed
that it was usually accurate. (“Q: So, in other words, he could have or not have
insurance, correct? A: No.”) (“Q: You asked him for his insurance? A: Not that
I recall. I already knew that the vehicle wasn’t insured.”) (“Q: I mean reports
are sometimes inaccurate, right? A: For the most part, no.”).
      Even if Officer Leal was not positive Broca-Martinez was uninsured, he
cleared the bar for reasonable suspicion. An officer does not have to be certain
a violation has occurred. See Castillo, 804 F.3d at 366. “This would raise the
standard for reasonable suspicion far above probable cause or even a
preponderance of the evidence, in contravention of the Supreme Court’s
instructions.” Id.
                             IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the denial of Broca-Martinez’s
motion to suppress and AFFIRM Broca-Martinez’s conviction and sentence.




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