327 F.3d 1127 (10th Cir. 2003), 02-2225, U.S. v. Gandara-Salinas

Docket Nº:02-2225
Citation:327 F.3d 1127
Party Name:U.S. v. Gandara-Salinas
Case Date:April 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1127

327 F.3d 1127 (10th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellant,


Jesus GANDARA-SALINAS, Defendant-Appellee.

No. 02-2225.

United States Court of Appeals, Tenth Circuit

April 25, 2003

Page 1128

David N. Williams, Assistant United States Attorney (David C. Iglesias, United States Attorney, and Norman Cairns, Assistant United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellant.

H. Craig Skinner of Denver, Colorado (Joseph (Sib) Abraham, Jr., of El Paso, TX, on the brief), for Defendant-Appellee.

Before SEYMOUR, BALDOCK and O'BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.

Defendant Jesus Gandara-Salinas was charged with possession of 50 kilograms or more of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(c). The government appeals the district court's suppression of evidence from the immigration stop and search. We reverse and remand for further proceedings.

Page 1129


On the morning of August 30, 2001, United States Border Patrol Agent Collier observed Mr. Gandara driving north on U.S. Highway 54 between Alamogordo, New Mexico and the Mexican border in a pickup truck with Chihuahua, Mexico license plates. Although that stretch of Highway 54 usually has a border control checkpoint, the fixed checkpoint had been torn down earlier in the summer for road construction. The absence of the checkpoint led to an increased use of the highway for smuggling. The agent followed Mr. Gandara for fifteen to twenty minutes, both on the highway and through town, during which time he made several observations that raised his suspicion about possible illegal behavior by Mr. Gandara. Most noteworthy among those observations were that the truck had recently crossed the border, the truck had foreign license plates, the drug checkpoint was temporarily closed resulting in an increase in drug traffic, and the spare tire appeared much larger than the other truck tires and much cleaner than the rest of the truck. After following Mr. Gandara through town, Agent Collier stopped the truck. Mr. Gandara consented to a canine inspection. The dog alerted to the gas tank of the truck. Agent Collier found approximately 150 pounds of marijuana in the gas tank and spare tire, which turned out in fact to be much larger than the truck's other tires.

Mr. Gandara moved to suppress this evidence on the ground that Agent Collier did not have the requisite reasonable suspicion to conduct an immigration stop. The district court granted the motion. United States v. Gandara-Salinas, 215 F.Supp.2d 1207 (D.N.M.2002).


The ultimate determination of reasonableness under the Fourth Amendment is a conclusion of law that we review de novo. See United States v. De la Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998). We view the evidence in the light most favorable to the prevailing party, and we accept the district court's findings of fact unless they are clearly erroneous. See id. at 1277-78. After reviewing the record, we are persuaded the court misapplied certain legal standards and committed clear error in assessing the testimony of Agent Collier.

The district court correctly recited the applicable legal standards. The Fourth Amendment requires a finding of reasonable suspicion that criminal activity may be afoot in order to conduct roving border patrol stops. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotations and citations omitted). See also United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). "Although an officer's reliance on a mere hunch is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 274, 122 S.Ct. 744 (quotations and citations omitted) (emphasis added). Border patrol agents may thus stop vehicles "if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" of criminal activity. United States v. Monsisvais, 907 F.2d 987, 989-90...

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