USA. v. Montero Camargo

• Decision Date: 11 April 2000
• Docket Number: D,SANCHEZ-GUILLE,MONTERO-CAMARG,97-50645,Nos. 97-50643,s. 97-50643
• Citation: 208 F.3d 1122
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERMAN ESPINOZAefendant-Appellant UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LORENZOefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1122

208 F.3d 1122 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERMAN ESPINOZA MONTERO-CAMARGO, Defendant-Appellant UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LORENZO SANCHEZ-GUILLEN, Defendant-Appellant.

Nos. 97-50643, 97-50645

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 10, 1998

Filed May 13, 1999

Amended August 25, 1999

Rehearing En Banc Granted and Opinion Withdrawn Oct. 25, 1999

Argued and Submitted December 16, 1999

Filed April 11, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Stephen Hubachek, Assistant Federal Public Defender, San Diego, California, for defendant-appellant Lorenzo Sanchez-Guillen. Harold G. Murray, San Diego, California, for defendant-appellant German Espinoza Montero-Camargo.

Bruce Castetter, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeals from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-96-02233-1-IEG.

Before: Procter Hug, Jr., Chief Judge, James R. Browning, Harry Pregerson, Stephen Reinhardt, Alex Kozinski, Thomas G. Nelson, Andrew J. Kleinfeld, Michael Daly Hawkins, Sidney R. Thomas, Barry G. Silverman, and M. Margaret McKeown, Circuit Judges.

REINHARDT, Circuit Judge:

The question before us is whether Border Patrol agents had reasonable suspicion to stop German Espinoza Montero-Camargo and Lorenzo Sanchez-Guillen. The defendants, who were driving separate automobiles in tandem, made U-turns on a highway at the only place where the view of the agents manning a permanent stationary checkpoint was obstructed. Following the turns, the two cars, both bearing Mexicali license plates, stopped briefly in an area that is often used as a drop-off and pick-up point for undocumented aliens and contraband. The U-turns occurred shortly after the cars passed a sign stating that the previously closed Border Patrol facility was now open. Based on these and other factors, the district court concluded that the stop, which occurred some fifty miles north of the Mexican border, was justified, as did the majority of the three judge panel that considered the question. We took the case en banc to reconsider the reasonable suspicion question. Although we affirm the result reached by both the district court and the panel majority, we reject some of the factors on which they relied.

FACTS

On the afternoon of October 15, 1996, a passing driver told border patrol agents at the Highway 86 permanent stationary checkpoint in El Centro, California, that two cars heading north, with Mexicali license plates,¹ had just made U-turns on the highway shortly before the checkpoint. Upon receiving the tip, two Border Patrol Agents, Brian Johnson ² and Carl Fisher,³ got into separate marked patrol cars and headed south to investigate. Approximately one minute later (and about one mile from the checkpoint), the two agents saw a blue Chevrolet Blazer and a red Nissan sedan, both with Mexicali plates, pull off the shoulder and re-enter the highway heading south.⁴

According to the agents, the area where they first observed the cars is used by lawbreakers to drop off and pick up undocumented aliens and illegal drugs, while evading inspection. Its use for such purposes is due in part to the fact that the view of that part of the highway area from the Border Patrol checkpoint is blocked. The location, according to Agent Johnson, is the only place where it is feasible to turn around both safely and with impunity. After that point, the road narrows and is in plain view of the checkpoint. The highway itself runs through the open desert and there is a fence on either side.

Both agents testified that almost all of the stops made by the Border Patrol at the turnaround site resulted in the discovery of "a violation of some sort . . . " involving either illegal aliens or narcotics.⁵ In contrast, Agent Johnson said that similar stops made in connection with turnarounds near other checkpoints did not result in arrests nearly as frequently. He attributed the difference to the fact that travelers routinely miss their turnoffs to camping sites near those other checkpoints. Before the northbound Highway 86 checkpoint, however, there are no exits, driveways, or roads nearby that a driver might accidentally pass by. In fact, the only exit off of Highway 86 in that area is a private driveway to the Elmore Ranch, some two miles from the turnaround point. ⁶

The place where the agents saw that the vehicles had stopped following the U-turn was a deserted area on the side of the southbound highway located opposite the large sign on the northbound side advising drivers that the checkpoint was open. As Agent Johnson testified, the sign was the first indication to northbound drivers that the Border Patrol's facility was operational. The checkpoint in question had been closed for some time and had reopened only a day or two earlier.

At the suppression hearing, Agent Johnson testified that the majority of people going through the El Centro checkpoint are Hispanic. This demographic makeup is typical of the larger region of which the city El Centro is a part. In Imperial County, where El Centro is located, Hispanics make up roughly 73% of the population. See U.S. Census Bureau, "Population Estimates for Counties by Race and Hispanic Origin: July 1, 1999." Agent Johnson also testified that as he pulled behind the Blazer, he noted that both the driver and the passenger appeared to be Hispanic. Johnson stated that when the driver and passenger noticed him behind them, the passenger picked up a newspaper and began reading. This, according to Agent Johnson, further aroused his suspicions. Johnson then stopped the Blazer, identified himself as a Border Patrol agent, and asked about the citizenship of the two occupants. In response to Johnson's inquiries, the driver, Lorenzo Sanchez-Guillen, and his passenger, Sylvia Renteria-Wolff, showed Agent Johnson I-586 cards, which allow Mexican citizens to travel up to 25 miles inside the United States for no longer than 72 hours at a time. As the Blazer had been stopped approximately 50 miles from the border, Johnson then brought the two occupants to the checkpoint for processing.

In the meantime, Agent Fisher continued to follow the second car, a red Nissan sedan. According to Fisher, when he and Agent Johnson first drew near the two cars, the Nissan began to accelerate. As Fisher caught up with the vehicle, he could see that the second driver also appeared to be Hispanic. Fisher ultimately pulled the Nissan over after following it for approximately four miles. Appellant German Espinoza Montero-Camargo was the driver. After stopping the car, Agent Fisher, with the aid of Agent Johnson, who had returned to help him, searched the trunk and found two large bags of marijuana. A subsequent search of the Blazer back at the checkpoint turned up a loaded .32 caliber pistol in the glove compartment and an ammunition clip that fit the pistol in the passenger's purse.

Montero-Camargo, Sanchez-Guillen, and Renteria-Wolff were charged with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. SS 846 and 841(a)(1), as well as possession of marijuana with intent to distribute in violation of 21 U.S.C. S 841(a)(1). SanchezGuillen was also charged with being an illegal alien in possession of ammunition in violation of 18 U.S.C. S 922(g)(5) and S 924(a)(2) and aiding and abetting the carrying of a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. S 924(c)(1) and (2). The three defendants filed a pre-trial motion to suppress on the ground that the vehicle stop was not based on reasonable suspicion. When the district court denied the motion, Montero-Camargo entered a conditional guilty plea to conspiracy to possess and possession of marijuana with the intent to distribute; he reserved the right to challenge on appeal two of the district court's determinations, including the denial of the motion to suppress.⁷ Sanchez-Guillen went to trial, and a jury convicted him of conspiracy to possess and possession of marijuana with the intent to distribute, as well as being an illegal alien in possession of ammunition. He raises a number of issues on appeal.⁸

In denying the motion to suppress, the district court conceded that the government's case "was somewhat weak," but concluded that, upon considering "all the factors that the officers had in their possession at the time that each of them made the stops, . . . there was a sufficient founded suspicion to make an investigatory stop." Those factors, as the district court categorized them, included: 1) the tip about a U-turn made in the middle of the highway just before the checkpoint by two cars with Mexican license plates; 2) the alleged driving in tandem and the Mexicali license plates which supported the inference drawn by the officers that these were the two cars identified by the tipster; 3) the area in question, which, based on the officers' experience with previous stops, is "a notorious spot where smugglers turn around to avoid inspection" just before the first sign indicating that the checkpoint was in fact open; 4) the fact that the occupants of both cars appeared to be of Hispanic descent; and 5) the fact that the passenger in the Blazer picked up a newspaper as the Border Patrol car approached. The district judge concluded that when these factors were considered in light of the officers' experience, they supported a finding of reasonable suspicion.

On appeal, Montero-Camargo and Sanchez-Guillen argued that the district court erred in denying the motion to suppress.

The panel majority agreed, however, with the district court's conclusion. It did so by listing, without further explication, a number of factors,⁹ including: apparent avoidance of...