United States v. Josie Arvizu

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2019
• Docket: 18-10285
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 28 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10285

Plaintiff-Appellee, D.C. No. 4:17-cr-01056-JGZ-BPV-1 v.

JOSIE ARVIZU, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 18-10296

Plaintiff-Appellee, D.C. No. 4:17-cr-01056-JGZ-BPV-2 v.

ERIKA HERNANDEZ-NUNEZ,

Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted October 23, 2019** Pasadena, California

Before: KLEINFELD and CALLAHAN, Circuit Judges, and RESTANI,*** Judge.

Defendants-Appellants, Josie Arvizu and Erika Hernandez-Nunez

(collectively, “Defendants”), appeal from the district court's denial of their motion

to suppress evidence obtained as a result of a stop of their vehicle, during which

illegal aliens were discovered in the trunk. Defendants entered conditional plea

agreements to the transport of illegal aliens for profit under 8 U.S.C. §§

1324(a)(1)(A)(v)(i), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i). They reserved their

rights to appeal the denial of their motion to suppress. We have jurisdiction under

28 U.S.C. § 1291, and we affirm the district court decision.

We review “de novo the district court’s ruling on a motion to suppress and

for clear error the district court’s underlying findings of fact.” United States v.

Evans, 786 F.3d 779, 784 (9th Cir. 2015). Reasonable suspicion determinations

are reviewed de novo, findings of historical fact are reviewed for clear error and

due weight is given “to inferences drawn from those facts by resident judges and

local law enforcement officers.” United States v. Valdes-Vega, 738 F.3d 1074,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. 2 1077 (9th Cir. 2013) (internal citation omitted). “We thus apply ‘a peculiar sort of

de novo review,’ United States v. Arvizu, 534 U.S. 266, 278 (2002) (Scalia, J.,

concurring), slightly more circumscribed than usual, because we defer to the

inferences drawn by the district court and the officers on the scene, not just the

district court's factual findings.” Id.

A law enforcement officer may “stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion supported by

articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks

probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989). In determining

whether there was reasonable suspicion, a court looks at the totality of the

circumstances. United States v. Cortez, 449 U.S. 411, 417 (1981). “The

reasonable-suspicion standard is not a particularly high threshold to reach.”

Valdes-Vega, 738 F.3d at 1078. “Reasonable suspicion is a commonsense,

nontechnical conception that deals with the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal technicians, act.” Id.

(internal quotation marks and citations omitted).

Here, a number of facts support the district court’s finding of reasonable

suspicion for stopping Defendants’ car. The San Miguel West Church is

surrounded by the dense Vamori Wash, which is known to provide coverage for

3 illegal aliens crossing the border. There were recent incidents of alien smuggling

in the area of the church. Defendants’ car was unknown to the agents, was

registered in Tucson, more than 90 minutes away, and had crossed the border from

Mexico less than 72 hours earlier. The car only stayed at the church for a short

period of time. Leaving the church the car drove faster than local traffic, kicking

up dust, and, contrary to the practice of local drivers, slowed down when the agent

began to follow it. The agent “observed a disturbance in the dirt on the vehicle’s

trunk, consistent with handprints previously found on the trunks of vehicles

transporting illegal aliens in the trunk.” These factors created a reasonable

suspicion even if, as Defendants contend, there could be innocent reasons for each

of them. The totality of the circumstances supports the finding of reasonable

suspicion. See United States v. Diaz-Juarez, 299 F.3d 1138 (9th Cir. 2002); United

States v. Guzman-Padilla, 573 F.3d 865 (9th Cir. 2009).

Defendants’ convictions are AFFIRMED.