U.S. v. Gandara-Salinas, 02-2225.

Decision Date25 April 2003
Docket NumberNo. 02-2225.,02-2225.
Citation327 F.3d 1127
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Jesus GANDARA-SALINAS, Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

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.

I

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).

II

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 (1990) (quoting Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. 2574).

The following factors are relevant in determining whether an immigration stop is supported by reasonable suspicion:

(1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver's behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; and (8) the appearance that the vehicle is heavily loaded.

Monsisvais, 907 F.2d at 990 (citing Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574). A law enforcement officer may assess these factors in light of his experience and specialized training, see Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. 2574, and a court should accord deference to an officer's ability to distinguish between innocent and suspicious actions, see De la Cruz-Tapia, 162 F.3d at 1277. Guided by these factors, the ultimate assessment of reasonable suspicion depends on the totality of the circumstances. See id. In making that determination, a court may not evaluate and reject each factor in isolation. See Arvizu, 534 U.S. at 274-75, 122 S.Ct. 744.

In assessing the totality of the circumstances in this case, the district court appears to have engaged in the "sort of divide-and-conquer analysis" the Supreme Court disapproved in Arvizu. See id. at 274, 122 S.Ct. 744. The court looked at each of Agent Collier's observations and believed each was, by itself, readily susceptible of an innocent explanation. More importantly, the district court failed to accord deference to the agent's ability to "draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that might well elude an untrained person." Id. at 273, 122 S.Ct. 744 (quotation and citation omitted). "A determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct." Id. at 277, 122 S.Ct. 744.

The district court dismissed several of the Brignoni-Ponce factors — the recent border crossing, the foreign license plates, the temporary closure of the border checkpoint, and the proximity to the border — as not indicative of criminal activity because they could be susceptible of an innocent explanation. Gandara-Salinas, 215 F.Supp.2d at 1210-11....

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