U.S. v. Sigmond-Ballesteros

• Decision Date: 20 April 2001
• Docket Number: No. 00-50408.,00-50408.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivan SIGMOND-BALLESTEROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

285 F.3d 1117

UNITED STATES of America, Plaintiff-Appellee, v. Ivan SIGMOND-BALLESTEROS, Defendant-Appellant.

No. 00-50408.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2001.

Filed April 20, 2001.

Opinion Withdrawn and Amended Opinion Filed April 12, 2002.

COPYRIGHT MATERIAL OMITTED

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

Patrick K. O'Toole, United States Attorney, and Mark A. Inciong, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CR-00-0348 NAJ.

Before FERGUSON, TASHIMA, and FISHER, Circuit Judges.

ORDER

The opinion filed on April 20, 2001, and reported at 247 F.3d 943, is withdrawn and replaced by the amended opinion filed concurrently with this order. With these amendments, the petition for panel rehearing is denied.

OPINION

TASHIMA, Circuit Judge.

I.

On January 27, 2000, United States Border Patrol Agent James Wright ("Wright"), in his 1998 Ford Expedition, was observing traffic on Highway 86 from the median. His vehicle was facing the northbound lanes, with his headlights on, so that "any traffic traveling northbound would have been intersecting the floodlights or the direction of [the] headlights going across the freeway." At approximately 4:20 a.m., Wright observed a F350 Ford pick-up truck with a camper shell pass his location. As the truck passed by, the driver of the truck "put his hand partially covering his face."

Finding this gesture suspicious, Wright decided to follow Defendant. He maneuvered onto the highway and quickly caught up to Defendant, who was traveling in the fast lane. Upon realizing that Wright's vehicle was at an unsafe distance behind him (two to three car lengths), Defendant made what was characterized by Wright as a "sudden change into the slow lane" and decreased his speed. Wright, continuing to travel in the fast lane, then pulled alongside Defendant's truck and activated his "alley light."¹ Wright could see that the rear seat was missing. He did not, however, see anything inside of the camper.

When Wright pulled up to the front of the passenger compartment of Defendant's truck, with his alley lights still on, he noticed that Defendant once again placed his hand between the light and his face, in what Wright characterized as an attempt to "conceal[] his face again." Wright then slowed down and pulled behind Defendant's truck so as to run Defendant's license plate number. As he moved behind Defendant's truck, however, Defendant pulled off onto the shoulder. At that moment, Wright activated his emergency lights. Defendant slowed down, and eventually pulled off the highway by making a right turn into a small dirt road and stopping his vehicle almost immediately thereafter. Wright exited his vehicle and upon approaching Defendant's truck, noticed approximately eighteen individuals lying on a blanket in the rear area of the truck's cab. After confirming the presence of several undocumented aliens, Defendant was arrested and eventually charged with transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).

Defendant originally pled not guilty. He also filed a motion to suppress the evidence obtained as a result of the stop, claiming that Wright lacked reasonable suspicion to stop him. The district court denied his motion, finding that:

The Court certainly, if it isolated the factors ... might well also arrive at your conclusion; however, the Court will not view the factors in isolation. [Government's counsel] has delineated factors that this Court would agree would lead a prudent officer to have reasonable suspicion. The time of morning, 4:20; an area known for alien smuggling. We have a vehicle traveling at that time when the usual traffic is commercial. We have — which is not disputed by any testimony — a driver that's attempting to obscure the view of his face. The agent's training and experience has led him to believe that this occurs because of the stop-and-flight situations with alien smugglers. This is the knowledge and experience, that, of course, the Court must take into consideration in determining whether or not there is reasonable suspicion. The sudden move to a different lane and then the move off of the main road of travel to the dirt shoulder, all of this would lead the court to believe that there was reasonable suspicion.... The Court should also mention as factors to be considered by the seat that is missing in the back of the cab section of the truck.

Defendant subsequently pled guilty, but reserved his right to appeal the district court's denial of his motion to suppress. After being sentenced, Defendant timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the determination of reasonable suspicion is a mixed question of law and fact, we review the district court's decision de novo. See United States v. Garcia-Camacho, 53 F.3d 244, 245 (9th Cir.1995). We reverse.

II.

The Fourth Amendment's prohibition against unreasonable searches and seizures extends to the 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). In reviewing a determination of reasonable suspicion, we "must look at the `totality of the circumstances' of [the] case to see whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); see also United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992), amended by 997 F.2d 1306 (9th Cir.1993) (stating that an officer may not detain a motorist without a showing of a "particularized and objective basis for suspecting the particular person stopped of criminal activity") (quoting Cortez, 449 U.S. at 417-18, 101 S.Ct. 690). Thus, while some factors may be "susceptible to innocent explanation, and some factors are more probative than others," the inquiry is whether, taken together, "they sufficed to form a particularized and objective basis" for making the stop. Arvizu, 122 S.Ct. at 753.

Furthermore, 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.) (en banc), cert. denied sub nom. Sanchez-Guillen v. United States, 531 U.S. 889, 121 S.Ct. 211, 148 L.Ed.2d 148 (2000). Thus, we will not find that a set of factors amounts to reasonable suspicion if "the profile tendered by the [government is] `calculated to draw into the law enforcement net a generality of persons unmarked by any really articulable basis for reasonable suspicion.'" See Garcia-Camacho, 53 F.3d at 246 (quoting Rodriguez, 976 F.2d at 596). Guided by these principles, we conclude that the factors relied on by the district court are not sufficient to form a "particularized and objective basis" for the stop. Arvizu, 122 S.Ct. at 753.

A. Lane Change and Move Off the Main Road

The district court found that Wright was justified in relying on Defendant's driving behavior in his reasonable suspicion analysis. This was error.² Based on Wright's driving behavior, Defendant could have reacted in one of three ways: He could have done nothing, he could have sped up, or he could have yielded by changing lanes and ultimately pulling off the road. Given the limited options available to him, it is difficult to imagine a more rational reaction than Defendant's.³ See Calif. Dep't of Motor Vehicles, Calif. Driver Handbook 65 (2000) (instructing drivers to "`lose' the tailgater as soon as you can by changing lanes. If you can't change lanes, slow down enough to encourage the tailgater to go around you. If this does not work, pull off the road when it is safe and let the tailgater pass."), available at http://www.dmv.ca.gov/pubs/pubs. htm# mc. In contrast, if Defendant had done nothing and stayed his course, Wright may have found it suspicious that Defendant "fail[ed] to acknowledge" him. See Arvizu, 122 S.Ct. at 752 (finding it "quite reasonable that a driver's ... failure to acknowledge a sighted law enforcement officer" might be suspicious, depending on the circumstances); cf. United States v. Jimenez-Medina, 173 F.3d 752, 755 (9th Cir.1999) ("a driver's preoccupation with a police vehicle following him is a `quite natural reaction' and was held to be insufficient to justify an investigatory stop") (discussing Robert L., 874 F.2d at 703). Or, if Defendant had sped up, he would have run the risk of exceeding the speed limit, thereby giving Wright probable cause to stop the vehicle for a speeding violation. Worse yet, Wright could have concluded that Defendant was trying to evade him. See Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (finding that evasive actions contribute to the totality of circumstances suggesting reasonable suspicion). Based on Defendant's available options, "[i]t is, in fact, difficult to imagine what [Defendant] could have done at that point that might not have appeared suspicious to a Border Patrol agent." Montero-Camargo, 208 F.3d at 1136 (emphasis omitted); Garcia-Camacho, 53 F.3d at 247 n. 5 ("It is not difficult to imagine the government one day arguing that driving at constant speed constitutes suspicious conduct because the best way to evade Border Patrol agents is not to stand out by going faster or slower than the normal flow of traffic.").

We are unwilling to place motorists in a "damned if you do,...