UNITED STATES of America, Plaintiff-Appellant, v. Burdetto Bernardo GARCIA-ACUNA, Defendant-Appellee

175 F.3d 1143, 99 Cal. Daily Op. Serv. 3233, 99 Daily Journal DAR 4195, 1999 U.S. App. LEXIS 8456, 1999 WL 261588
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 4, 1999
Docket98-10375
StatusPublished
Cited by15 cases

This text of 175 F.3d 1143 (UNITED STATES of America, Plaintiff-Appellant, v. Burdetto Bernardo GARCIA-ACUNA, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
UNITED STATES of America, Plaintiff-Appellant, v. Burdetto Bernardo GARCIA-ACUNA, Defendant-Appellee, 175 F.3d 1143, 99 Cal. Daily Op. Serv. 3233, 99 Daily Journal DAR 4195, 1999 U.S. App. LEXIS 8456, 1999 WL 261588 (9th Cir. 1999).

Opinion

TROTT, Circuit Judge:

The United States Government appeals a suppression order by the United States District Court for the District of Arizona. The court excluded evidence of marijuana found in the trunk of a car driven by Appellee Garda-Acuna from his trial for possession with intent to distribute marijuana under 21 U.S.C. § 841(a)(1) (1994). We have jurisdiction under 18 U.S.C. § 3731 (1994 & Supp. I 1995), and we reverse and remand.

I

On the day of Garcia-Acuna’s arrest, Border Patrol Agents Ortiz, Brown, and DeRose were patrolling several streets in downtown Nogales, Arizona, including East Street. East Street, which dead-ends approximately 75 to 100 feet from the international border with Mexico, was *1145 known to the agents for high levels of traffic in both illegal aliens and narcotics. The border fence near the end of East Street has “numerous holes and sections missing.” The agents’ assignment was to guard the border against illegal activity.

At the suppression hearing, the government presented the testimony of Agents DeRose and Ortiz. Both were graduates of the Border Patrol Academy and had received training in the laws pertaining to their assignments. Both had also been cross-designated by the U.S. Customs Service to enforce federal narcotics laws.

Agent Ortiz testified to observing four groups walking at different times between the international border and a certain house on East Street. The first group appeared to originate near the border and walked down East Street, but Agent Ortiz was unsure whether the group had crossed the border. Ten to fifteen minutes later, another group left the house and “jumped” the border fence into Mexico. The third group was observed jumping the border fence from Mexico into the United States and walking down East Street before disappearing near the house, and ten to fifteen minutes later, the fourth group left the house and jumped into Mexico. Agent Ortiz did not know whether any one group contained the same people as any other. Because these border crossings were illegal, Agents Ortiz and Brown searched East Street between the house and the border and discovered a burlap sack with twine and plastic bags at the end of East Street. According to Agent Ortiz’s testimony, not only is entering the United States without inspection an illegal act, but groups of people conspicuously crossing the border illegally are sometimes used, in his experience, as a diversionary tactic to permit contraband to be smuggled away from the border. Agent DeRose testified also that illegal aliens crossing the border at that point “get loaded up into vehicles and are driven north.”

A brown Ford Explorer was parked in the driveway of the house near where the groups had disappeared, and a red Camaro and a black Chevrolet Celebrity were parked across the street. Agent Ortiz testified to knowing at the time of the arrest about a prior seizure by his agency of the Explorer in connection with narcotics trafficking. He did not recognize the other’ cars and testified based on his familiarity with the neighborhood -that they did not “belong to” the area. At one time, a person opened the rear door of the Explorer, but Agent Ortiz did not see that person put anything inside. None of the agents observed anybody approaching the Cama-ro or the Celebrity.

About an hour after the agents surv-eilled the last group crossing into Mexico, the Camaro drove down East Street. Agent Brown stopped the Camaro but discovered nothing of interest. An hour later, the Explorer and the Celebrity departed at the same time, with the Explorer preceding the Celebrity down the hill for a block and a half. The Explorer then turned left while the Celebrity continued straight, 2 and Agent Brown followed the Explorer while Agent DeRose followed the Celebrity. The agents’ purpose was to look for illegal aliens.

Agent DeRose testified to following the Celebrity at the direction of Agent Ortiz, who was assigned to a van and, under Border Patrol policies, could not participate in the traffic stop. Agent DeRose checked the Celebrity’s license plate through a dispatcher in Tucson, who reported that the plate belonged to a Red Cherokee. Agent DeRose stopped the Celebrity, asked for identification, and asked permission to search the car. After discovering the marijuana and arresting Garcia-Acuna, Agent DeRose checked the li *1146 cense plate again and found that it did belong to the Celebrity. He testified this error may have been on his part or the dispatcher’s.

II

We review de novo the district court’s determination of whether reasonable suspicion existed to support an investigatory stop. United States v. Michael R., 90 F.3d 340, 345-46 (9th Cir.1996). Findings of fact made by the district court as part of its determination are reviewed for clear error. Id. at 345.

III

The Fourth Amendment guards against unreasonable seizures of a person, including brief investigatory stops. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An investigatory stop is permissible if specific articulable facts and rational inferences drawn from those facts “reasonably warrant suspicion that the person to be detained may have committed or is about to commit a crime.” United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir.1986) (citing Cortez, 449 U.S. at 417). The suspicion must be particularized to the person stopped. Cortez, 449 U.S. at 418 (citing Terry v. Ohio, 392 U.S. 1, 21 n. 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

In our recent decision in United States v. Ordaz, 145 F.3d 1111 (9th Cir.1998), we affirmed a finding of reasonable suspicion for an investigatory stop of a vehicle under facts similar to the instant case. In Ordaz, Border Patrol Agents observed men carrying packages across the border and down East Street, watched the men put the packages in a vehicle, but were unable to discern the vehicle’s make. Id. at 1112. With the purpose of looking for contraband, the agents stopped four of six vehicles coming down East Street in the next few minutes, discounting the other two for various reasons. Id. One stopped vehicle contained marijuana. Id. Because “[t]he Border Patrol had at least reason to suspect a crime had been committed and to believe that the driver of one of the four cars coming from the area of suspicious activity was carrying out the crime,” we found articulable facts leading to reasonable suspicion.

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175 F.3d 1143, 99 Cal. Daily Op. Serv. 3233, 99 Daily Journal DAR 4195, 1999 U.S. App. LEXIS 8456, 1999 WL 261588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-plaintiff-appellant-v-burdetto-bernardo-ca9-1999.