ALVIN B. RUBIN, Circuit Judge:
Because the economic opportunities and political freedom offered by the United States irresistibly attract illegal immigrants across the longest unfortified borders in the world, law enforcement authorities are faced with a continuing duty to stem the illicit influx that violates our laws, deprives domestic workers of jobs, and creates innumerable other problems that the immigration laws were designed to prevent. This task must, however, be performed with due regard to the Fourth Amendment to the Constitution, which affords citizen and alien alike protection against illegal stops, searches, and arrests. To determine whether a person engaged in assisting unlawful immigration was apprehended by lawful means, we consider en banc the validity of the action of a state police officer in stopping a motor vehicle being driven on a Texas State Highway, 25 miles from the border of the United States with Mexico. See United States v. Brignoni-Ponce, 1975, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607.
I.
The security of citizens against arbitrary police intrusion into places of privacy is at the core of the Fourth Amendment proscription against unreasonable searches of private citizens and seizures of their property. Wolf v. Colorado, 1949, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, 1785. If evidence, therefore, is illegally seized by a federal officer, it may not be used in a federal prosecution, Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; nor may a federal prosecutor employ evidence illegally obtained by a state police officer, Elkins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669. See also Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Not only must the evidence illegally obtained itself be excluded, but evidence located as a result of information secured by an illegal search is likewise inadmissible, Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, unless the connection between the illegal search and the evidence thereafter obtained has become "so attenuated as to dissipate the taint." Nardone v. United States, supra, 308 U.S. at 341, 60 S.Ct. at 268, 84 L.Ed. at 312; United States v. Ceccolini, 1978, 435 U.S. 268, 274, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268, 275-76.
The purpose of the exclusionary rule is to deter police misconduct, Stone v. Powell, 1976. 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067; United States v. Calandra, 1974, 414 U.S. 338, 347, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561, 571; Terry v. Ohio, 1968, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1883-84, 20 L.Ed.2d 889, 910-11; Linkletter v. Walker, 1965, 381 U.S. 618, 636, 85 S.Ct. 1731, 1741, 14 L.Ed.2d 601, 613. Because not only the benefits but also the costs of the exclusionary rule are substantial, its application is "restricted to those areas where its remedial objectives are though most efficaciously served." United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct. at 620. Chief Justice Burger has stated that effective action by Congress to deter illegal police activity in some other fashion might occasion reconsideration of the exclusionary rule, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 1971, 403 U.S. 388, 421, 91 S.Ct. 1999, 2017, 29 L.Ed.2d 619, 641 (Burger, J., dissenting), and more recently has gone the next step to suggest that the rule must be abolished if legislative alternatives are to be encouraged, Stone v. Powell, 1976, 428 U.S. 465, 500-01, 96 S.Ct. 3037, 3055, 49 L.Ed.2d 1067, 1091-92 (Burger, J., concurring). Although not specifically adopting the Chief Justice's suggestions, recent cases have expressed concern over the great costs of the exclusionary rule as compared with the uncertain benefits derived therefrom. See, e. g., Stone v. Powell, supra; United States v. Janis, 1976, 428 U.S. 433, 448-49, 96 S.Ct. 3021, 3029, 49 L.Ed.2d 1046, 1058; Schneckloth v. Bustamonte, 1973, 412 U.S. 218, 266-69, 93 S.Ct. 2041, 2068-69, 36 L.Ed.2d 854, 885-87 (Powell, with whom Burger and Request joined, concurring).
Even federal officers on roving patrols assigned the mission of searching for illegal immigrants or smuggled contraband may stop vehicles "only if they are aware of specified articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." United States v. Brignoni-Ponce, supra, 422 U.S. at 884, 95 S.Ct. at 2582, 45 L.Ed.2d at 618. Evidence obtained as a result of a stop that is not warranted by this standard must be suppressed. Id. Out-of-court statements and other verbal evidence derived immediately from unlawful police action or from an unlawful arrest must also be excluded unless the evidence was obtained by "means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States 1963, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455; see also United States v. Brignoni-Ponce, supra.
The application of these doctrines to the in-court testimony of witnesses located as a result of an illegal search has recently been clarified in United States v. Ceccolini, supra. In Ceccolini, the Supreme Court held that, if the exclusion of the proffered testimony of a witness identified or located as a result of an illegal search would efficaciously serve the remedial objectives of the exclusionary rule, that evidence must be excluded. If, on the other hand, after striking a balance of the interests involved, exclusion of the testimony would bear no "relation to the purposes which the law is to serve," 435 U.S. at 279. 98 S.Ct. at 1062, then it should be admitted. The decision in Ceccolini requires us to re-examine the conviction of the defendant obtained as a result of the testimony of the witnesses arrested after the stop of a defendant's automobile and the consequent arrest of defendant and the witnesses.
II.
The defendant, Guillermo Rhodes, was convicted after a jury trial of conspiracy to transport illegal aliens and three counts of transporting illegal aliens. His conviction was affirmed by a panel of this court, United States v. Cruz, 5 Cir. 1977, 559 F.2d 300, Coleman, J., dissenting. As the facts set forth in the panel opinion demonstrate, the validity of this conviction was sustained on the basis that Rhodes was legally stopped by a State Deputy Sheriff when he was driving on a Texas highway; moreover, the testimony of the illegal aliens found in his automobile was held admissible, and this of itself provided sufficient evidence to sustain the conviction. Contrary to the panel decision, we find clearly erroneous the district court's implied conclusion of fact that appellant's car was stopped in good faith for traffic control purposes; for the reasons set forth below, we conclude that Rhodes and his vehicle were halted as a pretext to search for illegal aliens. This conclusion requires us to re-examine the admissibility at trial of the testimony of the auto's occupants. We conclude that the testimony was a direct result of the illegal stop and resultant illegal arrest, that to exclude it would serve the purposes of deterring illegal searches in the future and therefore, that it was inadmissible. There being no other evidence to support the conviction, it is reversed.
The defendant's full name is Guillermo Rhodes Cruz. However, Rhodes is his panoramic name; Cruz is his mother's family name.
In violation of 8 U.S.C. § 1324(a), 1324(a)(2) and 18 U.S.C. § 371. He was sentenced to four concurrent two-year terms. In addition, probation on a ninety-day sentence for a prior similar offense was revoked and defendant was ordered to serve that sentence concurrently with the two-year sentences imposed here. He was released on bond pending this appeal.
The district court merely denied a motion to suppress; it made no findings in support of its conclusion.
III.
Like the panel, we begin with the rubric that, if the initial stop was legal, the deputy sheriff had the duty to investigate suspicious circumstances that then came to his attention. United States v. Faulkner, 5 Cir. 1974, 488 F.2d 328, 330, cert. denied, 1974, 417 U.S. 914, 94 S.Ct. 2614, 41 L.Ed.2d 218. See also United States v. Freund, 5 Cir. 1976, 525 F.2d 873, 875, cert. denied, 1976, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 377; United States v. Edwards, 5 Cir. en banc 1978, 577 F.2d 883. If, however, the initial stop was not for a valid purpose, then observations made during the stop may not serve as a basis for further search. Amador-Gonzalez v. United States, 5 Cir. 1968, 391 F.2d 308. See also United States v. Davis, 5 Cir. 1970, 423 F.2d 974, 977-78, cert. denied, 1970, 400 U.S. 836, 91 S.Ct. 74, 27 L.Ed.2d 69; Texas v. Gonzales, 5 Cir. 1968, 388 F.2d 145. Compare United States v. Kaiser, 5 Cir. 1977, 545 F.2d 467.
The panel decision fairly recites the facts. We recount them because, in our view, some of the factual circumstances require greater emphasis and because, while a majority of the panel was merely troubled by the conclusion the trial court reached, we, like our brother who dissented, consider it clearly erroneous. The testimony most favorable to the prosecutor is that of the arresting officer, Deputy Sheriff Muldraw, and we necessarily adopt the view of the facts supported by his account. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.
Deputy Muldraw was employed full time in private industry. In addition, he served as a deputy sheriff and was on 24-hour call even when engaged in private work. He had been a deputy for about three months but had received no training. He had never been called away from work to serve as a deputy. His private employer knew he was a deputy sheriff but he had never discussed with his employer the possibility that he might be called to police duty while at work. He had made arrests of specific individuals on instructions from a superior, but, on his own initiative, he had made arrests on only "a couple" — or "several" — occasions when he arrested aliens and turned them in to the Border Patrol. He had never made an arrest of any kind for a state offense on his own initiative.
On May 18, 1976, between 9:00 and 10:00 a. m., in broad daylight, Deputy Muldraw was driving west on State Highway 359 in his private vehicle, a pick-up truck, which bore no police identification. Although not in uniform, he was technically on duty because he was going to Laredo to have a two-way radio installed in his pick-up truck by the Sheriff's Department. As he approached Laredo, he ascended a hill. As he did so, she observed a 1966 Pontiac traveling west on the shoulder of the highway at a slow speed, with its right turn indicator on. A yellow stripe on the highway indicated that this was an area in which it was illegal for one automobile to pass another on the highway. After the deputy passed the Pontiac and descended the hill, he kept looking in his rear-view mirror but did not see the Pontiac come over the hill.
This rise in the highway is referred to in the testimony many times as a hill. At other times there is testimony about an overpass.
Deputy Muldraw said he thought that, perhaps, the Pontiac had "car trouble or whatever," so he turned around to see if he could be of some assistance. When he returned to the place where he had seen the Pontiac, it had turned around and was traveling east. Concluding that the Pontiac had made an illegal U-turn, he followed it one mile toward the town of Aquilares, to a cut-off, Highway 2859. At this point the deputy blinked his lights on and off, honked his horn, pulled up beside the Pontiac and asked the driver to pull over.
The panel opinion states, "he had to pursue the Pontiac some distance before his honking and pulling alongside the car convinced its driver to stop." Deputy Muldraw's testimony at the hearing on the motion to suppress was:
Q. What did you do after you observed that illegal U-turn had been made?
A. I proceeded and followed him — well, all the way to Aguilares to the cutoff. It's 2859 where he turned to the left, where I stopped him.
Later, at the trial, he said:
A. I just followed him. He was traveling a great deal faster than when he had his indicator on. I though I would go ahead and pursue him and stop him and give him that warning.
Upon Deputy Muldraw's request, the driver defendant, Rhodes, presented his driver's license which was valid. Deputy Muldraw testified that, when he looked the passengers over, they seemed nervous. The one in the front seat was dressed neatly but not the three in the back. This aroused his suspicions so he asked the passengers for identification. The passenger in the front seat presented a green card (apparently the permit allowing a Mexican national access to the zone in the United States 25 miles from the border for 72 hours) which the deputy "suspected" was not valid. Because the passengers in the back seat had no identification, he arrested all of the occupants of the automobile, ordered the passengers to get in the back of his pick-up, and had Rhodes follow him in the Pontiac to the Border Patrol office in Hebbronville, where he turned all of them in.
Although Deputy Muldraw testified that he pursued and stopped the Pontiac "merely to warn [the driver] of his violation and the danger of a U-turn at the point at which he made it" and to "check" the driver's license, he never then or later even gave the driver any warning about violating the traffic laws, nor did he arrest him for doing so.
IV.
Like the panel, we are reluctant to reverse the factual conclusions of the trial judge. Rule 52 of the Federal Rules of Civil Procedure, states: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." The "clearly erroneous" rule is into set forth explicitly in the Federal Rules of Criminal Procedure but the same standard applies to findings of fact made by the court in criminal cases. Campbell v. United States, 1963, 373 U.S. 487, 493, 83 S.Ct. 1356, 1360-61, 10 L.Ed.2d 501, 507; United States v. Juarez, 5 Cir. 1978, 573 F.2d 267, 273; United States v. Crouch, 5 Cir. 1978, 566 F.2d 1311, 1318; United States v. Carrillo, 5 Cir. 1977, 561 F.2d 1125, 1128-29; and United States v. Griffin, 5 Cir. 1977, 555 F.2d 1323, 1324. We have attempted faithfully to comply with this mandate, not merely out of adherence to its command but also because it is based on sound jurisprudential considerations. The trial judge has observed the appearance and demeanor of the witnesses and heard their voices; he has breathed in the atmosphere of the courtroom and observed the multitudinous details that do not appear on the record. We see but the insentient notations on a typed manuscript.
Moreover, most fact questions ought to be decided in the trial court, for the primary institutional function of the nisi prius judge is to hear and decide cases. The dual function of appellate courts is to review the record of trials for alleged error and, incident thereto, to announce and apply principled rules for the guidance of trial courts, lawyers, and litigants. Thus the appellate opinion not only gives the reasons for the court's decision in today's case; it guides lower courts in cases that arise in the future, and it enables the bar to predict the outcome of litigation, thus enabling counsel to avoid or settle future controversies. These purposes are ill-served by appellate re-evaluation of the facts.
To these ends, we have applied the clear error rule in a host of cases. It will suffice to refer to the two leading treatises which, listing only examples, cite pages of cases from this and the other circuits. See 5A Moore's Federal Practice, ¶ 52.03[1], at page 2628 [33 pages] (2d ed. 1977); 9 Wright and Miller, Federal Practice and Procedure, § 2577 (1st ed. 1971). The rule is equally applicable in habeas corpus cases. Wade v. Mayo, 1948, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Parnell v. Wainwright, 5 Cir. 1972, 464 F.2d 735; Perkins v. Henderson, 5 Cir. 1969, 418 F.2d 441; Johnson v. Ellis, 5 Cir. 1961, 296 F.2d 325, cert. denied, 1962, 369 U.S. 842, 82 S.Ct. 873, 7 L.Ed.2d 846; Moore's Federal Practice, supra, ¶ 52.03[3], at page 2671; Wright Miller, supra, § 2573. See also Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Holiday v. Johnston, 1941, 313 U.S. 342, 550, 61 S.Ct. 1015, 85 L.Ed. 1392.
We are aware of The Doubtful Omniscience of Appellate Courts, see Wright, in an article having that title, 41 Minn.L.Rev. 751 (1957). The record reaches us in what may be either "gigantesque bundles" or "in a deceptively slender fagot of papers." Traynor, La Rude Vita, La Dolce Giustizia; or Hard Cases Can Make Good Law, 29 U.Chi.L.Rev. 223, 225 (1962). In either form it is desiccated, an embalmed vestige of the life of the courtroom. Like Justice Traynor, we "recognize the common sense in a distribution of responsibility that normally precludes an appellate court from reassessing probabilities that the triers of fact have assessed at close range." Id. at 226.
Yet the appellate court has not only the power to set aside findings of fact that are clearly erroneous, as Rule 52 provides, but the duty to do so. The finder of fact is entitled to respect but not to a patent of infallibility. Our factual review "calls for the utmost scruple," Watts v. Indiana, 1949, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801, 1804. It should be exercised only when the reviewing court, "on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766. See also cases cited in Committee Note, Advisory Committee on Federal Rules, concerning amendments proposed in 1955, cited in Moore's Federal Practice, supra, ¶ 52.01[7], p. 2608.
In the present case, we are left with that definite and firm conviction. Cf. Amador-Gonzalez v. United States, 5 Cir. 1968, 391 F.2d 308. Compare United States v. Hernandez-Lopez, 9 Cir. 1976, 538 F.2d 284, cert. denied, 1976, 429 U.S. 981, 97 S.Ct. 494, 50 L.Ed.2d 590, where there was a valid stop initially because the car did not have a current year registration sticker. Our appraisal of the facts, viewed in the light most favorable to the prosecution, leads us to the conclusion that Deputy Muldraw stopped the Pontiac for the sole purpose of searching for aliens. It is not suggested that he had any cause to conduct such a search, let alone cause that was probable. However credible the officer may have appeared to be when he testified, our experience as human beings, as lawyers, and judges, prevents our being gullible enough to think that an untrained, part-time deputy sheriff, while only technically on duty because he was en route to get a radio installed in his own pick-up truck, went out of his way to turn around, follow a motorist for a mile, and then stop him merely to proffer the advice, "You must have made a U-turn a mile or so back there, and I want to warn you that you must not do it again." We are left with the firm conviction that Deputy Muldraw was hunting for illegal aliens and stopped Rhodes's automobile in order to inspect its occupants.
V.
Because the defendant was the victim of the illegal stop of his own automobile at a time when it was being driven by him, there can be no doubt of his standing to urge suppression of the evidence obtained during and as a result of that search. Alderman v. United States, 1969, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965, 22 L.Ed.2d 176, 185-86; United States v. Brignoni-Ponce, supra. Rhodes's rights were violated when his automobile was stopped, he was questioned, and passengers in his car were inspected. He has the same standing to object to inspection of his passengers as he would have to object to inspection of his cargo. The subsequent interrogation of the passengers was the fruit of the illegal search. The statements in our decisions in United States v. Breedlove, 5 Cir. 1971, 444 F.2d 422, and United States v. Allen, 5 Cir. 1976, 537 F.2d 1387, cert. denied, 1977, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803, with respect to standing to urge the suppression of testimonial evidence that resulted from a search contended to be invalid, must be re-evaluated in the light now afforded by Brignoni-Ponce, supra, and Ceccolini, supra, and, to the extent that they are inconsistent, they are overruled.
Rhodes's counsel filed a motion in advance of trial to suppress the evidence obtained as a result of the stop of the Pontiac. It was denied, and, thereafter, at the trial, his counsel neither repeated the motion nor objected to admission of the testimony. The failure to reiterate the objection did not waive it. Lawn v. United States, 1958, 355 U.S. 339, 353, 78 S.Ct. 311, 319, 2 L.Ed.2d 321, 332. Later, he did his best to turn that evidence to his favor, but this, too, does not constitute a waiver. United States v. Edmonds, 1975, 173 U.S. App.D.C. 241, 243 n. 10, 524 F.2d 62, 64 n. 10; cf. United States v. Mireles, 5 Cir. 1978, 570 F.2d 1287, where the motion to suppress was carried with the case to the trial, but the defense counsel never sought a ruling on it during trial, and United States v. Elmore, 4 Cir. 1970, 423 F.2d 775, cert. denied, 1970, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54, where defense counsel affirmatively stated "no objection" to evidence admitted after a pretrial hearing in which the trial judge indicated that he would probably admit the evidence if offered but apparently made no formal ruling.
VI.
The conviction of the defendant could not be supported without the testimony of the occupants of the Pontiac. Two of them testified against him at the trial on July 26, two months after their arrest. Because they were illegal aliens, subject to deportation, they were presumably kept in custody in the interim. It is clear that evidence obtained during the period when the automobile was illegally detained and immediately thereafter must be suppressed; whether the testimony of the occupants of the automobile proffered at the trial — months later — should have been suppressed must be decided according to the standards set forth in United States v. Ceccolini, 1978, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268, a decision announced only after the panel opinion and therefore not available to it.
The Supreme Court there refused to "adopt what would in practice amount to a per se rule that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it and a violation of the Fourth Amendment." 435 U.S. at 274-275, 98 S.Ct. at 1059, 55 L.Ed.2d at 276. Instead it concluded that, if a witness is located as a result of a search unconstitutional under the Fourth Amendment, the admissibility of the witness's testimony depends upon a balancing test; the court should consider: (1) the degree of free will exercised by the witness in testifying (because the greater the willingness of the witness to testify freely, the greater the likelihood that he would have been discovered by legal means and, consequently, the smaller the incentive to the police to conduct an illegal search to discover witnesses); (2) the time, place and manner of the initial questioning of the witness (as indicating whether the statements are truly the product of detached reflection and the witness's desire to be cooperative and whether the illegality that led to discovery of the witness played any meaningful part in the witness's willingness to testify); and (3) the relationship of the purpose of the originally illegal search to the subject of the testimony (because automatic exclusion would perpetually disable a witness from testifying about relevant and material facts regardless of how unrelated these were to the purpose of the search and would be of little deterrence to illegal searches).
These tests may be restated in terms of: (1) Directness: how direct was the relationship between the search and the ultimate testimony?; (2) Attenuation: is the causal relationship weakened by facts showing that the witness's voluntary detached reflection and other circumstances occurring after the search played a significant part in inducing the witness to testify?; (3) Inhibitory Effect: would exclusion of the testimony tend to deter unconstitutional police misconduct?
Here, each test points to the same result; all weights must be placed on the "suppress" side of the balance. The witnesses were initially questioned at the very scene of arrest and detained only as a result of the illegal stop. They were detained until the trial, and their testimony can hardly be said to be either voluntary or the result of detached reflection. They were discovered as a result of a search having no purpose other than their discovery and apprehension. Finally, the exclusion of their testimony is likely to deter such searches in the future. The Ceccolini analysis commands the exclusion of the testimony indispensable to conviction.
For these reasons, the decision of the panel of this court dated September 16, 1977 and set forth at 559 F.2d 300 is vacated, and the conviction is REVERSED.