United States v. Agustin Garcia-Nunez, United States of America v. Charles Ray Benson

709 F.2d 559, 1983 U.S. App. LEXIS 26328
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 28, 1983
DocketDC 82-1302, DC 82-1404
StatusPublished
Cited by17 cases

This text of 709 F.2d 559 (United States v. Agustin Garcia-Nunez, United States of America v. Charles Ray Benson) 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 v. Agustin Garcia-Nunez, United States of America v. Charles Ray Benson, 709 F.2d 559, 1983 U.S. App. LEXIS 26328 (9th Cir. 1983).

Opinions

CANBY, Circuit Judge:

Appellant Garcia-Nunez was convicted of conspiracy to conceal and transport undocumented aliens, and of transporting an undocumented alien. He appeals, arguing that police officers violated his fourth amendment rights when they stopped the car he was driving. We affirm.

Appellant Benson was convicted of conspiracy to conceal and transport undocumented aliens, and of aiding and abetting Garcia-Nunez in the transportation of an undocumented alien. He argues that the evidence will not support the aiding and abetting conviction. We agree and reverse that conviction.

Appellant Garcia-Nunez

Police Officers of National City, California, alerted by a citizen’s report, staked out a house which they suspected was being used in smuggling. After a time some men left the house and drove away in a car also thought to be involved in the smuggling. An officer stopped the car, which was driven by defendant-appellant Garcia-Nunez. When the officer asked the passengers about their citizenship, they admitted that they were aliens illegally in this country. Garcia-Nunez was convicted of conspiracy to conceal and transport undocumented aliens in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324, and of transporting an undocumented alien in violation of 8 U.S.C. § 1324(a)(2). He appeals, contending that the car stop violated the fourth amendment because the police lacked the “founded suspicion” necessary to justify the initial stop.

The district judge found that the police had founded suspicion which justified a brief Terry stop of the car driven by Gar[561]*561cia-Nunez. We review this finding under the clearly erroneous standard. United States v. Tate, 694 F.2d 1217, 1223 (9th Cir.1982); United States v. Post, 607 F.2d 847, 849 (9th Cir.1979). Founded suspicion means that the officers must have “specific 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.” Id. at 478, quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). The officers need not rule out all possibility of innocent behavior. United States v. Patterson, 492 F.2d 995, 997 (9th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974).

Here the police had received the following information from third parties:

1. An anonymous tip (from a few weeks before) that some vehicles, including a grey Mercury bearing license number 868-UYG, were involved in smuggling drugs or aliens in and out of a house at 1320 Hoover Street. Police may consider an anonymous tip in determining whether to make a stop. United States v. Avalos-Ochoa, 557 F.2d 1299, 1302 (9th Cir.), cert. denied, 434 U.S. 974, 98 S.Ct. 532, 54 L.Ed.2d 466 (1977).

2. A complaint from a neighbor that Mexican-looking men were standing near a grey Mercury exchanging money.

3. A later report from the same neighbor that the men entered the house mentioned in the anonymous tip.

Police officers or agents had also observed the following actions:

4. A man left the house and was seen driving around and around the block, presumably conducting “counter-surveillance.”

5. Another man, Garcia-Nunez, left the house and appeared to look around for signs of trouble.

6. At a signal from this “lookout,” four men then walked hurriedly from the house to the Mercury.

7. The Mercury driven by Garcia-Nunez was the car identified in the anonymous tip.

8. The men in the rear seat of the Mercury sat low in the seat.

9. The men, by their dress, appearance, and demeanor, “appeared” to be illegal aliens. Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582 (experienced officers may recognize recent Mexican residents by dress and haircut).

10. The passengers were of Mexican descent. Mexican ancestry is not alone a sufficient justification for a stop, but it is a permissible factor for founded suspicion. Brignoni-Ponce, 422 U.S. at 887, 95 S.Ct. at 2583.

We conclude that these facts provided the officers with founded suspicion to stop the car. See United States v. Rocha-Lopez, 527 F.2d 476, 477 (9th Cir.), cert. denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976); United States v. Vasquez-Cazares, 563 F.2d 1329 (9th Cir.), cert. denied, 434 U.S. 1021, 98 S.Ct. 746, 54 L.Ed.2d 769 (1978); United States v. Hemandez-Gonzales, 608 F.2d 1240, 1242-43 (9th Cir.1979). The conviction is accordingly affirmed. Appellant Benson

Police officers of National City, California, searched the house of defendant-appellant Benson and discovered undocumented aliens, including Antonio Amesquita-Medi-na (“Medina”). Benson was charged with conspiring to conceal and transport undocumented aliens in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324; with harboring undocumented alien Medina in violation of 8 U.S.C. § 1324; and with aiding and abetting defendant Garcia-Nunez in transporting Medina in violation of 8 U.S.C. § 1324(a)(2) and 18 U.S.C. § 2. The district court held the search of Benson’s house to be illegal and granted Benson’s motion to suppress evidence resulting from it.

The testimony of Medina was used to convict Garcia-Nunez of transporting an illegal alien. The district judge, however, ruled that the testimony of Medina was the fruit of the illegal search and so was inadmissible against Benson. Consequently, the judge acquitted Benson of harboring, but found him guilty of conspiracy and aiding and abetting.

[562]*562Benson does not appeal the conspiracy conviction. He contends, however, that insufficient admissible evidence exists to support the conviction for aiding and abetting. The government does not argue that sufficient evidence remained to convict Benson directly.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Todman v. People
59 V.I. 675 (Supreme Court of The Virgin Islands, 2013)
United States v. Oros
578 F.3d 703 (Seventh Circuit, 2009)
United States v. Donnelly
6 F. App'x 618 (Ninth Circuit, 2001)
United States v. Gene R. "Moon" Mullins
22 F.3d 1365 (Sixth Circuit, 1994)
United States v. Francisco Hernandez-Alvarado
891 F.2d 1414 (Ninth Circuit, 1989)
United States v. Juan Manuel Sanchez-Vargas
878 F.2d 1163 (Ninth Circuit, 1989)
United States v. Jose Guadalupe Magana
775 F.2d 1354 (Ninth Circuit, 1985)
Charles Laduke v. Alan C. Nelson, Etc.
762 F.2d 1318 (Ninth Circuit, 1985)
State v. Fillion
474 A.2d 187 (Supreme Judicial Court of Maine, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
709 F.2d 559, 1983 U.S. App. LEXIS 26328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-agustin-garcia-nunez-united-states-of-america-v-charles-ca9-1983.