NEW ORLEANS — Next Wednesday, the Fifth Circuit Court of Appeals will hear oral arguments in the case of James Larremore, an Alpine man who was arrested for smuggling three undocumented people in a horse trailer for pay in July 2023. He was later convicted on one count of transporting migrants, but his legal counsel insists that this was the result of an unlawful seizure by a Brewster County Sheriff’s Office deputy.
Over the past few weeks, due process in federal immigration proceedings has become a topic dissected below headlines around the world, making Larremore’s case a local microcosm for some of the most widely-debated legal issues of our time. Did the way that former BCSO Deputy Christopher Colona handle roving patrol one hot July afternoon violate Larremore’s Fourth Amendment right against illegal searches and seizures?
On the afternoon of July 9, 2023, Deputy Colona skipped lunch, opting instead to monitor traffic on Highway 385 north of Marathon. He would later testify that he planned to do so to help cover a gap made by a Border Patrol shift change that savvy smugglers might take advantage of.
Colona was parked by the side of the road when he saw an F-250 pulling an empty horse trailer. He knew from previous encounters that the truck belonged to Larremore, but thought it was odd that he was driving on 385 north of Marathon, instead of closer to his father’s ranch or the Big Bend parks, where he took tourists on horseback trips.
Among BSCO employees, Larremore had a bit of a rowdy reputation. In his testimony, Colona said that a South County deputy had had a run-in with him after a late night at the High Sierra turned into a shootout at Jo-Mama’s RV Park. Colona himself had encountered him asleep in his truck after last call at the Ole Crystal Bar. (The deputy also said a source accused Larremore of being involved in a smuggling operation, but didn’t provide any details about the informant.)
In dashcam footage provided by the government, Colona pulls out behind Larremore four seconds after his trailer leaves the frame, pushing up to 93 miles an hour to catch up with him. After following close for a short period of time, Larremore pulls over — even though Colona hasn’t activated his emergency lights.
Colona gets out of his cruiser and peeks in the back of the trailer. He walks up to the passenger side window of Larremore’s truck and presses against the truck while they continue to talk. A curly haired dog watches over the proceedings from the pickup bed.
Colona eventually breaks contact with the truck and turns back around toward his vehicle. Larremore appears in the frame shortly after, carefully maneuvering his way around the gooseneck to stand face to face with Colona in the ditch.
The bodycam footage, complete with audio, paints a clearer picture of how the interaction starts to go south. The clip provided to the court begins with Colona approaching the passenger window. The two men shake hands, and Larremore tells Colona he’s headed up to Odessa to sell the trailer.
Before Colona breaks to go take a look at the back of the truck, he tells Larremore to “hang on a sec” — a phrase that would tangle court proceedings down the line.
While the two are face-to-face in the ditch, Colona asks Larremore if he has the key to the trailer, which is apparently locked. “Is there anything in there that’s not supposed to be?”
Larremore explains that his girlfriend — he hesitates in remembering her name — has the key, and also volunteers that his name isn’t on the trailer; he just bought it and hadn’t yet switched over the paperwork. There’s a good saddle and some camping supplies in there, but nothing else. “I’m not doing anything funky,” he insists.
At this point, Colona starts to pressure Larremore into figuring out a way to get the key. “Shoot me straight right now,” he says. “I know more than I’m probably leading onto.”
“You think there’s dope in there?” Larremore asks.
“I’d rather we do this like gentlemen — I know you’re not a bad guy,” the deputy insists.
“I guess get your bolt cutters,” Larremore says — but quickly backpedals. “What if I don’t allow you to look in there?”
Colona says that if Larremore won’t consent to a search, he’ll have to call for a K9 backup. If the K9 alerts on the trailer, then a search will be compelled.
Larremore continues to hesitate. “I have my rights,” he says. “I’ve been jacked with before by some different police officers — not you.”
The deputy says he doesn’t understand why the situation has to escalate — why not figure out a way to get the door open so everyone can be on their way?
“Maybe I got a big sack of dildos back there I don’t want you to see,” Larremore says.
The two men talk in circles a while longer, with Larremore explaining the circuitous route he took from Alpine to Terlingua Ranch “through the country” and back up to Marathon. It’s clear Colona’s not buying it. “If I was running dope, that’s exactly the route I would take,” he says.
Nearly 17 and a half minutes into the stop, Colona reveals that he saw an open container of alcohol in the cab, which would give him probable cause to search the truck without permission.
This appears to be Larremore’s breaking point. “I’ve got three cousins in there,” he admits.
“The uniform changed everything”
The 20-minute bodycam clip ends with Larremore in handcuffs, leaning up against the side of Colona’s cruiser. The discovery of the migrants concealed inside the trailer wasn’t caught on camera, but a report filed later that afternoon by Border Patrol Agent Joseph Beasley logs three men who “freely admitted to being present in the United States without any documents” who were detained and inspected as a result of Larremore’s confession.
Larremore’s legal counsel, Shane O’Neal of Alpine, has argued throughout the case that the discovery of the three people in the trailer was the result of an illegal stop. O’Neal insists that his client’s detention began much earlier in the stop — about 40 seconds in, when the deputy asks his client to “hang on a sec.”
Both O’Neal’s and the government’s filings refer to the U.S. Supreme Court’s 1968 Terry v. Ohio ruling. In the original Terry case, a Cleveland police officer conducted a stop and frisk on three men he believed were behaving suspiciously and discovered a gun. Two of the men were convicted of carrying a concealed weapon, but their case was later appealed on the grounds that the way that the officer had found the concealed weapon was via an illegal stop.
Terry cemented the concept of “reasonable suspicion” into the complex calculus that determines whether interactions between civilians and peace officers are admissible in court. “Reasonable suspicion” under Terry is a step below “probable cause,” or the criteria required for an arrest — if the officer has an educated hunch that something is wrong, courts have typically ruled that it’s okay for them to briefly detain a suspect to gather more information.
The border adds another layer of complexity. In 1975, the Supreme Court added more detail to what constitutes “reasonable suspicion” in United States v. Brignoni-Ponce, a case in which racial profiling led an officer to search a truck full of undocumented people. Some of the factors law enforcement can use to justify reasonable suspicion include proximity to the border, the area’s typical traffic patterns and reports about recent smuggling or other unlawful activities.
In Larremore’s case, the government argues that the hitches in his story led naturally to a Terry stop. “By the time the consensual encounter had converted into a Terry detention, multiple facts supported finding that reasonable suspicion existed for the detention,” they write.
O’Neal argues that Colona’s behavior from the moment he pulled out to follow Larremore taints the investigation to the degree that any of the self-incriminating things the suspect reveals throughout the exchange ought to be tossed. He characterizes Colona’s pursuit of Larremore as “unsafe,” pushing 20 miles over the speed limit to hover within a few feet of the back of the trailer.
When Larremore pulled over — presumably to let Colona pass — the deputy never lit up his emergency lights. If Colona hadn’t been wearing a uniform and driving a marked cruiser, the situation would have turned out differently — if anyone else tailgated Larremore until he pulled over, then got out of their vehicle to approach his truck, that would be a “clear prelude to a fight.”
Instead, O’Neal wrote, “The uniform changed everything.”
O’Neal also took issue with Colona’s body language, leaning on and even into the truck while he’s speaking with Larremore. “Neither the government nor the district court seriously attempts to explain why a reasonable person would think they could drive off while an officer holds onto their truck, sticks his head in the window, and questions them,” he wrote. “Every action that Deputy Colona took after approaching Larremore’s vehicle confirmed, to a reasonable person in Larremore’s position, that he was not free to leave.”
This is the question that will be considered next Wednesday morning before Chief Judge Jennifer Walker Elrod, Kurt D. Engelhardt and Greg Gerard Guidry. If the appeals court rules in Larremore’s favor, it’s unlikely to make much of a dent in his 37-month sentence — he is scheduled to be released in October — but it could have a big impact on the courts’ evolving understanding of how civilians and cops interact on the border.