United States v. Benjamin J. Diaz-Juarez

299 F.3d 1138, 2002 Cal. Daily Op. Serv. 7435, 2002 Daily Journal DAR 9409, 2002 U.S. App. LEXIS 16471, 2002 WL 1869609

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2002
• Docket: 01-50263
• Status: Published

Opinions

Opinion by Judge TASHIMA; Concurrence by Judge GRABER; Dissent by Judge FERGUSON.

OPINION

TASHIMA, Circuit Judge.

Defendant-Appellant Benjamin Diaz-Juarez (“Diaz”) entered a conditional guilty plea to conspiracy to distribute marijuana and methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), while reserving his right to appeal. See Fed.R.Crim.P. 11(a)(2). He now appeals the district court’s denial of his motion to suppress evidence based on an assertedly illegal investigatory stop. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

Shortly after midnight on June 29, 2000, Border Patrol agent Arturo Rodriguez (“Agent Rodriguez”), a four-and-a-half-year Border Patrol veteran, observed Diaz traveling south on Tierra del Sol Road, approximately five miles north of the United States/Mexico border. Agent Rodriguez’s suspicions were aroused initially because residents of the local community generally were not out at that time of night. The area also was known for illegal alien crossings and smuggling activity, and there had been reports that large, military-style duffel bags, presumably filled with contraband, were about to. be moved north across the border.

Based on this initial suspicion, Agent Rodriguez followed Diaz. While doing so, he noticed that the vehicle was not registered in the area, the rear¹ of the vehicle bounced erratically over small bumps, the rear of the vehicle appeared raised and the suspension modified, and the vehicle was slowing and speeding in a manner suggesting that the driver was unfamiliar with the area.

Agent Rodriguez stopped Diaz approximately one-quarter mile from the border. Diaz admitted that he was an illegal alien and indicated that he was headed to the Makiri Bacon Ranch to look after the owner’s pigs. Diaz was taken into custody for processing and voluntary return to Mexico. No inspection of the vehicle or other inquiry into possible drug — or alien — smuggling activity was conducted at that time.

At approximately 6:30 that morning, Agent Rodriguez prepared a “Record of Deportable/Inadmissible Alien,” documenting the stop, in which he noted that the Makiri Bacon Ranch is in an area known for smuggling activity. Shortly thereafter, agents seized 269.5 pounds of marijuana at the Makiri Bacon Ranch. While in custody for processing, Diaz implicated himself in a conspiracy to smuggle the marijuana seized at the ranch. Agents then searched Diaz’s backpack, finding a glass pipe and five small packages of methamphetamine.

After he was indicted, Diaz moved to suppress evidence, contending that the investigatory stop was illegal. At the suppression hearing, the district court concluded that Agent Rodriguez had reasonable suspicion and denied Diaz’s motion. It held that “[tjhis officer had every right to stop that vehicle, because he believed based on the totality of the circumstances that criminal activity was afoot.”

II. STANDARD OF REVIEW

Whether an investigatory stop is supported by reasonable suspicion presents a mixed question of law and fact. United States v. Garcia-Camacho, 53 F.3d 244, 245 (9th Cir.1995). While we review mixed questions of law and fact de novo, United States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir.1997), factual determinations underlying this inquiry are reviewed for clear error, United States v. Garcia-Acuna, 175 F.3d 1143, 1146 (9th Cir.1999).

III. DISCUSSION

The Fourth Amendment’s prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. See United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Accordingly, an officer may not detain a motorist without “reasonable suspicion.” United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992), amended by 997 F.2d 1306 (9th Cir.1993). Reasonable suspicion consists of “specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.” Id. (citations and internal quotation marks omitted). Reasonable suspicion may not be “based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped.” United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir.1994), overruled in -part on other grounds by United States v. Montero-Camargo, 208 F.3d 1122, 1131-32 (9th Cir.), cert. denied, 531 U.S. 889, 121 S.Ct. 211, 148 L.Ed.2d 148 (2000).

In the context of stops made near a border, the Supreme Court has identified a non-exclusive set of factors that may be considered in determining whether reasonable suspicion exists: (1) characteristics of the area in which a vehicle is encountered; (2) proximity to the border; (3) usual traffic patterns on the particular* road; (3) previous experience with alien traffic; (4) recent illegal border crossings in the area; (5) erratic or evasive driving behavior; (6) aspects of the vehicle; and (7) the behavior or appearance of the driver. Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574.

While an officer should consider these factors in light of experience detecting illegal entry and smuggling, “experience may not be used to give the officers unbridled discretion in making a stop.” Nicacio v. United States INS, 797 F.2d 700, 705 (9th Cir.1985), overruled in part on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir.1999) (en banc). An investigatory stop must be based on facts, not the “mere subjective impressions of a particular officer,” United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989), and the inferences drawn by the officer must be objective and reasonable, United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

Diaz argues that Agent Rodriguez did not have reasonable suspicion to conduct an investigatory stop. Relying primarily on this court’s analyses in United States v. Sigmond-Ballesteros, 247 F.3d 943 (9th Cir.2001), superseded by 285 F.3d 1117 (9th Cir.2002), and United States v. Arvizu, 217 F.3d 1224 (9th Cir.2000), rev’d, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), Diaz argues that his driving behavior, the characteristics of his vehicle, and the suspicion of contraband-laden duffel bags just south of the border, all have innocent explanations; accordingly, he argues, this court may not factor them into its reasonable suspicion analysis.

This argument, however, is unavailing. In United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), the Supreme Court reaffirmed that the proper reasonable suspicion analysis considers the combination of factors motivating an investigatory stop to determine whether they support a finding of reasonable suspicion under the “totality of the circumstances.” 122 S.Ct. at 750. Individual factors that may appear innocent in isolation may constitute suspicious behavior when aggregated together. United States v. Sokolow, 490 U.S. 1, 9-10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). While some of the factors that led Agent Rodriguez to stop Diaz may, when viewed in isolation, be innocently explainable, when viewed in their totality, they create reasonable suspicion of criminal activity.

First, Agent Rodriguez’s original suspicion of Diaz, while itself insufficient to justify the investigatory stop, was grounded in objectively identifiable facts. Initially, Diaz was on Tierra del Sol Road at a very unusual time. Agent Rodriguez knew from experience that it was unusual to encounter traffic so late in the area; thus, it was understandable that Diaz’s presence aroused Agent Rodriguez’s suspicion.¹ See United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir.2000). Additionally, as Agent Rodriguez testified, Tierra del Sol Road was located in a high-crime area.² While Diaz’s presence in a high-crime area cannot alone provide reasonable suspicion that he had committed or was about to commit a crime, Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), Agent Rodriguez could consider this fact in forming reasonable suspicion, Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Finally, Agent Rodriguez encountered Diaz close to the border,³ shortly after receiving reports that contraband was poised for smuggling into the United States. While the Supreme Court has cautioned that “[rjoads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well,” Brignoni-Ponce, 422 U.S. at 882, 95 S.Ct. 2574, proximity to the border may be considered as a factor in the reasonable suspicion calculus, id. at 884, 95 S.Ct. 2574.

Second, Agent Rodriguez’s initial suspicion ripened into reasonable suspicion as he observed Diaz’s unusual car and driving behavior. Agent Rodriguez determined that Diaz’s vehicle was registered out of the area, and he observed the vehicle slowing and speeding in a manner consistent with a driver who did not know the area. Agent Rodriguez further observed that Diaz’s vehicle bounced erratically over small bumps and that the rear of the vehicle appeared raised and the suspension modified, which he knew to be common characteristics of vehicles used for smuggling. While there were potentially innocent explanations for Diaz’s unusual car and driving behavior, Agent Rodriguez correctly considered these factors in light of his pre-existing suspicion. Given that Agent Rodriguez’s suspicions had already been piqued by objective, particularized facts, and that these suspicions compounded further as Agent Rodriguez followed Diaz, we conclude that the threshold of reasonable suspicion was crossed and that the totality of circumstances justified Agent Rodriguez’s investigatory stop of Diaz.

IV. CONCLUSION

The district court did not err in concluding that, under the totality of the circumstances, Agent Rodriguez reasonably suspected Diaz of criminal activity. Accordingly, we affirm the order of the district court denying Diaz’s motion to suppress evidence obtained from Agent Rodriguez’s investigatory stop.

AFFIRMED.

1 . The dissent’s reliance on Sigmond-Balleste-ros, see. dissent at 1145, in which we held that driving at 4:20 a.m. was of little probative value, see 285 F.3d at 1125, is misplaced. Unlike Tierra del Sol Road, which is in an isolated area, the highway involved in Sig-mond-Bdltesteros was a major highway used by long-distance commuters who "would ordinarily leave El Centro around that time." Id.

2 . The dissent takes issue with the fact that this is a high-crime area. See dissent at 1145. That, however, is what the district court found: "And in addition, this is an area that's notorious for smuggling ... almost on every shift the Border Patrol apprehends people on a daily basis crossing through this Tierra del Sol area.” That finding is not clearly erroneous.

3 .The dissent argues that Diaz's conduct was suspicionless because he was "traveling towards the border as if to leave the United States, not to enter it.” Dissent at 1146. In doing so, it either misconstrues the record or speculates about Diaz’s intent. Contrary to the dissent’s suggestion, nothing in the record supports that Diaz intended to leave the United States. Moreover, although Diaz was traveling in the general direction of the border (south), that was also the direction of the Makin' Bacon Ranch. And, in fact, Diaz later confirmed to Agent Rodriguez that he was headed for the Makin’ Bacon Ranch, which is within one mile of the border.