U.S. v. Garcia-Barron

• Citation: 116 F.3d 1305
• Decision Date: 26 June 1997
• Docket Number: GARCIA-BARRON,96-50508,Nos. 96-50498,s. 96-50498
• Parties: 97 Cal. Daily Op. Serv. 5035, 97 Daily Journal D.A.R. 8201 UNITED STATES of America, Plaintiff-Appellee, v. Rafael, and Grabel Solis Gonzalez, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1305

116 F.3d 1305

97 Cal. Daily Op. Serv. 5035, 97 Daily Journal

D.A.R. 8201

UNITED STATES of America, Plaintiff-Appellee, v. Rafael GARCIA-BARRON, and Grabel Solis Gonzalez,

Defendants-Appellants.

Nos. 96-50498, 96-50508.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 9, 1997.

Decided June 26, 1997.

Knut S. Johnson, Law Office of Knut S. Johnson, San Diego, CA, for defendant-appellant Garcia-Barron.

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant Solis Gonzalez.

Lawrence E. Spong, Assistant United States Attorney, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-96-0569-MLH.

Before: O'SCANNLAIN and TASHIMA, Circuit Judges, and WHALEY, District Judge. ^*

WHALEY, District Judge:

Appellants Grabel Solis Gonzalez ("Solis Gonzalez") and Rafael Garcia-Barron ("Garcia-Barron") both pleaded guilty to conspiracy to bring in, bringing in, and transporting illegal aliens, in violation of 18 U.S.C. §§ 2 and 371 (1994) and 8 U.S.C. § 1324 (1994). Having entered conditional pleas that preserved their rights to appeal, Appellants now challenge the District Court's denial of their Motions to Suppress on the grounds that the stop of both Appellants and the arrest of one was justified by reasonable suspicion and probable cause, respectively. We have jurisdiction under 28 U.S.C. § 1291 (1994), and we affirm.

BACKGROUND

The Border Patrol operates a checkpoint north of Nyland, California, on Highway 111, approximately fifty miles from the Mexican border. A northbound vehicle can avoid the checkpoint by exiting Highway 111 at Frink Road and taking several side roads that ultimately rejoin Highway 111 north of the checkpoint. Frink Road may also be used to access several trailer parks/spas occupied by retirees, who generally do not travel on Frink Road in the early morning hours.

At 3:00 a.m. on March 7, 1996, Border Patrol Agent Olvera ("Olvera") was stationed at the checkpoint, when he observed a vehicle driven by Solis Gonzalez exiting the highway at Frink Road. In the days preceding March 7, there had been an unusually high number of arrests for alien smuggling on Frink Road and the other side streets used to circumvent the checkpoint. Suspecting the vehicle that exited the highway was attempting to bypass the checkpoint, Olvera followed the vehicle. While doing so, he checked the vehicle license and determined that the car had been rented from a Budget Rent-A-Car office in the Los Angeles area. In Olvera's experience, most of the rental cars he had stopped during the previous two years were transporting persons subsequently charged with immigration violations. Olvera stopped the vehicle after it passed the two trailer courts/spas that are the most common destinations from the Frink Road exit but before the vehicle reached the intersection of Frink Road with Hot Mineral Spa Road. At that intersection, the vehicle could either have turned right and driven to a dead end, where another trailer park/spa was located, or turned left, ultimately rejoining Highway 111 north of the checkpoint.

During the stop, Solis Gonzalez presented Olvera with a United States passport and stated that he had been born in Tucson, Arizona. While speaking with Solis Gonzalez, Olvera also saw a cellular phone and pager in the vehicle. Solis Gonzalez stated that he was looking for a restroom and was traveling to Coachella to give money to a truck driver. Nevertheless, Solis Gonzalez did not know either the driver's name or the meeting place.

During the stop, a van passed. Olvera directed his flashlight at the van and noticed people "ducking down." Olvera stopped questioning Solis Gonzalez and, together with Border Patrol Agent Cordero ("Cordero"), who had just arrived, followed the van, leaving Solis Gonzalez free to proceed. Olvera caught up with, and stopped, the van several miles north of the checkpoint. A records check revealed that it had been rented from a Budget Rent-A-Car office twenty miles from the branch at which Solis Gonzalez had rented his car. When the agent approached the vehicle, no one was in the driver's seat, but there were approximately twenty-eight people sitting or kneeling in the back of the van. Garcia-Barron, who was later identified as the driver, was lying on top of the others in a spread-eagled manner.

As the agents were removing the occupants of the van, Solis Gonzalez drove past. By this point, the agents had done a further records search on Solis Gonzalez and learned that he was a Mexican citizen, who had been deported to Mexico previously, directly contradicting his claim to United States citizenship. By the fact that Solis Gonzalez drove past Garcia-Barron's stopped vehicle, which was then north of the checkpoint, the agents knew that Solis Gonzalez had circumvented the checkpoint. The agents stopped and arrested Solis Gonzalez.

ANALYSIS

I. Reasonable Suspicion

A. Reasonable Suspicion to Stop Solis Gonzalez's Vehicle

On appeal, Solis Gonzalez argues that the District Court's denial of his Motion to Suppress should be reversed because Olvera did not have reasonable suspicion to stop his vehicle.

In the context of Border Patrol searches, the factors to be considered in determining whether "reasonable suspicion" exists to justify stopping a vehicle include, but are not limited to: 1) characteristics of the area; 2) proximity to the border; 3) usual patterns of traffic and time of day; 4) previous alien or drug smuggling in the area; 5) behavior of the driver, including "obvious attempts to evade officers"; 6) appearance or behavior of passengers; 7) model and appearance of the vehicle; and, 8) officer experience. United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975).

In the instant case, the District Court properly characterized the inquiry regarding reasonable suspicion as "close" because it largely involved facts that are as consistent with innocent activity as criminal activity. There was nothing inherently suspicious about the type of car Solis Gonzalez drove, the manner in which he drove, or Solis Gonzalez himself. Ultimately, however, the existence of two factors gave rise to reasonable suspicion that Solis Gonzalez was involved in criminal activity. First, the District Court found that Solis Gonzalez was attempting to avoid the checkpoint, based on Olvera's testimony and the surrounding circumstances. Apparent efforts to avoid checkpoints combined with other factors have generally been found to constitute "reasonable suspicion." United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1493 (9th Cir.1994); United States v. John Doe, 701 F.2d 819 (9th Cir.1983); United States v. Roberts, 470 F.2d 858, 859 (9th Cir.1972).

The District Court's factual finding was not clearly erroneous in light of the time of day, the route taken, the failure to turn off at either of the most common destinations for the limited traffic that legitimately traveled the road, and the fact that the area was known for alien smuggling. Solis Gonzalez correctly points out that a stronger case would exist if Olvera had waited to see if the car accessed the third trailer park, located further down the road beyond where the stop occurred. The District Court, however, accepted Olvera's conclusion that the car was avoiding the checkpoint, giving rise to reasonable suspicion for a stop. ¹

The second factor supporting the District Court's finding of reasonable suspicion is Appellant's use of a rental car. When coupled with the factors cited supra, Olvera's experience in stopping rental cars and Appellant's use of such a vehicle makes the determination of reasonable suspicion constitutionally sound. See, e.g., United States v. Franco-Munoz, 952 F.2d 1055, 1057-58 (9th Cir.1991) (rental agency sticker was one of seven factors that "paint[ed...