Defendant’s immigration stop 56 miles from the border was without reasonable suspicion under Brignoni-Ponce. He was alone and stopped and checked his phone and pulled into a car wash. Defendant’s actions were more consistent with innocence than criminal conduct. United States v. Aguilar-Garza, 2018 U.S. Dist. LEXIS 178779 (S.D. Tex. Oct. 18, 2018)*:
The last four Brignoni-Ponce factors, on the other hand, all weigh in favor of Defendant’s position. As to the fifth and sixth factors, nobody testified that Defendant or his vehicle looked as though they had recently traversed the brush—there was no testimony, for example, that Defendant’s clothing was dirty, that he smelled funny, or seemed nervous. The agent testified that his attention was drawn to the fact that Defendant was pulled over with his hazard lights on, but a driver pulling over to interact with his phone should not seem an out-of-place behavior for anyone who has traveled on this nation’s highways in the past decade—whether the person is responding to a time-sensitive e-mail, consulting a map application, or yes, even looking for their device between or under seats. While it might be true that many smugglers pretend to be having car troubles while they wait to transport undocumented individuals, Defendant’s actions were hardly consistent with such behavior—his hazard lights were on for less than a minute before he got back in his vehicle and drove to the Lavame Car Wash. As to the seventh factor, the group of undocumented aliens that agents were tracking had allegedly been a twenty-minute walk from Defendant’s location at least thirty minutes prior to his encounter with Agent Martinez; if they were actually headed toward Defendant’s vehicle, they would have been loaded up and on the road before the agent even saw Defendant. And as to the eighth and final factor, Defendant had no passengers in his vehicle, let alone anyone who looked like they had recently been in the brush.