United States v. Omar Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 12, 2019
• Docket: 18-50305
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED NOV 12 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50305 Plaintiff-Appellee, D.C. No. 5:17-cr-00166-PSG-1 v.

OMAR ERNESTO HERNANDEZ, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Phillip S. Gutierrez, District Judge, Presiding

Argued and Submitted October 23, 2019 Pasadena, California

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

Omar Ernesto Hernandez (“Hernandez”), a citizen of the United States, was

convicted on three counts of transporting or moving three unlawfully-present

Mexican nationals, in contravention of 8 U.S.C. § 1324(a)(1)(A)(ii). He was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. arrested after two U.S. Border Patrol agents stopped his vehicle approximately 70

miles north of the U.S.-Mexico border near Murrieta, California. Hernandez appeals

the district court’s denial of his motion to suppress the stop for lack of reasonable

suspicion. We affirm.

The Court reviews the denial of a motion to suppress de novo. United States

v. Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013) (en banc). Reasonable

suspicion determinations present mixed questions of law and fact, which the Court

also reviews de novo. United States v. Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010).

Border Patrol agents may perform “brief investigatory stops” near an international

border if they have a “reasonable suspicion to believe that criminal activity may be

afoot.” United States v. Raygoza-Garcia, 902 F.3d 994, 999 (9th Cir. 2018) (citing

United States v. Arvizu, 534 U.S. 266, 278 (2002) (Scalia, J., concurring)).

“Reasonable suspicion is defined as a particularized and objective basis for

suspecting the particular person stopped of a criminal activity.” Id. at 999–1000

(citation and quotation omitted). We evaluate “the totality of the circumstances”

known to the Border Patrol agents at the time of the stop. See Valdes-Vega, 738

F.3d at 1079.

Preliminarily, we conclude that Hernandez preserved his legal arguments for

our review, and the district court did not clearly err as to its factual findings. In

2 making the stop, the Border Patrol agents relied in part upon a text-based alert from

an internal Border Patrol system, which advised them that Hernandez’s vehicle was

suspected of involvement in human smuggling. The agents then entered two queries

in the TECS Alert System, an internal Customs & Border Protection database that

includes certain information about, inter alia, suspicious persons and property who

enter the United States. The queries revealed that the vehicle at issue, which was

registered to Hernandez, crossed into the United States 100 miles away and five

hours earlier, that Hernandez was alone at the time (although now he had three

passengers), and that Hernandez and the vehicle were the subject of ongoing human

smuggling investigations.

We have held previously that the existence of an active TECS alert at a port

of entry, coupled with other indicia of criminality, may give rise to a reasonable

suspicion that warrants referral to secondary inspection. See United States v.

Cotterman, 709 F.3d 952, 968–69 (9th Cir. 2013) (en banc). While the TECS reports

here revealed only ongoing investigations, not convictions, they also revealed facts

about the time of entry and occupancy of the vehicle. Combined with the extended

time taken to reach the point of interception on the interstate highway, a known route

for smuggling, and abnormally slow and slightly weaving driving behavior, the

reasonable suspicion standard was met. In reviewing reasonable suspicion

3 determinations, courts do not “nitpick the factors in isolation.” Id. at 970. Instead,

courts defer to the officers’ sound, reasoned inferences based upon the cumulative,

reliable information available to them at the time of the stop. Valdes-Vega, 738 F.3d

at 1078.

AFFIRMED.