State v. Mendoza, 20922

• Citation: 748 P.2d 181
• Decision Date: 01 December 1987
• Docket Number: No. 20922,20922
• Parties: STATE of Utah, Plaintiff and Appellant, v. Adolfo Diaz MENDOZA, Defendant and Respondent. STATE of Utah, Plaintiff and Appellant, v. Alberto Ruiz MENDIETA, Defendant and Respondent.
• Court: Supreme Court of Utah

Page 181

748 P.2d 181

56 USLW 2378

STATE of Utah, Plaintiff and Appellant, v. Adolfo Diaz MENDOZA, Defendant and Respondent.

STATE of Utah, Plaintiff and Appellant, v. Alberto Ruiz MENDIETA, Defendant and Respondent.

No. 20922.

Supreme Court of Utah.

Dec. 1, 1987.

David L. Wilkinson, David B. Thompson, Salt Lake City, Peter L. Rognlie, St. George, for plaintiff and appellant.

J. MacArthur Wright, John Miles, St. George, for defendant and respondent Mendoza.

John E. Meyers, Los Angeles, California, for defendant and respondent Mendieta.

DURHAM, Justice:

The State brought this appeal to challenge the trial court's suppression of evidence obtained during a search of the car in which defendants were traveling. The State assigns as error the trial court's use of a probable cause standard to determine the validity of the stop, the trial court's finding that defendants had standing to challenge the validity of the search, and the trial court's failure to make findings pursuant to Utah Code Ann. § 77-35-12(g) (1982). We affirm.

The following summary of the facts is based on testimony from both the suppression hearing and the preliminary hearing. The trial judge relied on testimony from both in granting the motion to suppress.

On March 16, 1985, two United States Immigration Service border patrol officers observed the northbound traffic on I-15 south of St. George, Utah, from a car parked on the median for that purpose. Their car was green, with official decals on both doors and a light bar mounted on the roof. At approximately 4:50 a.m., three cars approached the officer's position, including the black Mustang in which defendants were traveling. Officer Stiegler testified that his partner, Officer Fox, told him that the car deserved a closer look because the occupants appeared to be of Latin descent. Officer Fox, however, testified at the suppression hearing that he could not remember making the statement concerning defendants' apparent ethnic origin.

Officer Fox, the driver of the border patrol car, pulled onto the highway and began to pursue the black Mustang. In order to catch up with it before it reached a rest stop, where the officers could view the car and its passengers with the aid of roadside lights, the officers followed the Mustang at high speed. When they caught up with defendants' vehicle, it failed to leave the left lane despite the officers' rapid approach; however, neither officer could testify that the occupants of the Mustang had seen the officers' car approach. The officers matched the Mustang's speed and followed at a distance of two to six feet. The officers then noticed that the Mustang had California license plates.

The Mustang eventually pulled into the right lane and decelerated rapidly. Both officers described the car's movements as "jerky." The officers pulled alongside the Mustang, dropped back, and then pulled alongside the car again. With the aid of the lights from the rest stop, the officers determined that defendants appeared to be of "Latin descent" and behaved "nervously." When asked to describe defendants' behavior more specifically, however, the officers testified only that defendants avoided eye contact with the officers. Based on the time of year, the California license plates on the car, defendants' "nervous" behavior, defendants' physical characteristics, and the "jerky" driving, the officers decided to pull the Mustang over and question defendants concerning their citizenship status.

The officers questioned both defendants, and neither was able to produce adequate identification. The officers arrested defendants and placed them in the back of the officers' car. At this point, the officers opened the trunk of the Mustang to determine if it contained any other passengers and discovered the fifty-one bags of marijuana that were the subject of the motion to suppress.

We consider first the propriety of the initial stop. The State contends that the trial judge improperly assessed the validity of the stop under a probable cause standard instead of the appropriate "reasonable suspicion" standard. The plain language of the suppression order does not, however, support the State's position. The order reads, "[T]here were no (articulable) facts as a basis or probable cause for the stop." (Emphasis added.) Use of the disjunctive indicates that the trial judge found not only a lack of probable cause, but also a lack of any basis whatsoever for the stop. The transcript of the trial court's ruling supports this interpretation. The transcript indicates that the trial judge found "there was no basis for the original stop," without making any reference to a lack of probable cause. Although inclusion of the probable cause language in the order confuses the standard applied by the trial court, that language does not indicate that the trial judge suppressed the evidence in question solely because the facts failed to meet the more restrictive probable cause standard.

Even under the "reasonable suspicion" standard announced in United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975), the facts known to the border patrol officers at the time they stopped the Mustang did not justify the stop. In Brignoni-Ponce, the United States Supreme Court reviewed the propriety of a stop, based solely on the "Mexican" appearance of a vehicle's three occupants, to investigate the possible transportation of illegal aliens. The Court held, "Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific, articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." Id. The sole fact relied upon by the border patrol officers in Brignoni-Ponce was the "apparent Mexican ancestry" of the vehicle's occupants. Id. at 885-86, 95 S.Ct. at 2582-83. The Court held that apparent Mexican ancestry alone did not furnish "reasonable grounds to believe that the three occupants were aliens." Id. at 886, 95 S.Ct. at 2582.

In Brignoni-Ponce, the Court listed several factors for consideration in determining if the officers had reasonable suspicion to justify the stop of the suspect vehicle: (1) the characteristics of the area, including its proximity to the border, usual traffic patterns, and previous experience with alien traffic; (2) information concerning recent border crossings in the area; (3) the driver's behavior, including erratic driving or an obvious attempt to evade officers; (4) the characteristics of the vehicle itself, such as its size and observations indicating that the vehicle is heavily loaded; (5) whether the occupants of the vehicle are trying to conceal themselves; and (6) whether the occupants have a characteristic Mexican appearance, i.e., particular style of haircut or dress. The officer is entitled to assess the facts available to him in light of his experience. Id. at 884-85, 95 S.Ct. at 2581-82. In determining whether the facts support a reasonable suspicion that a vehicle is engaged in illegal activity, the trial court must consider the totality of the circumstances facing the officers. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). The reviewing court should not overturn the trial court's determination unless it is clearly erroneous. Id. at 416; see also State v. Gallegos, 712 P.2d 207, 208-09 (Utah 1985). A review of the facts in this case indicates that the trial judge's order suppressing the questionable evidence was not clearly erroneous.

The officers in this case relied on the following facts in determining that they had a reasonable suspicion justifying the stop of the Mustang: (1) the apparent "Latin descent" of the occupants of the Mustang; (2) the route of travel; (3) the time of day; (4) the time of year; (5) the California license plates; (6) the erratic driving pattern; and (7) the nervous behavior of the occupants.

As to the first factor, Officer Stiegler simply testified that the occupants of the Mustang appeared to be of "Latin descent." He did not identify any characteristics observed before the stop, such as clothing or haircut, that would indicate Mexican nationality. Many United States citizens and residents have physical characteristics that might be classified as Latin. Without other observations concerning physical characteristics that would indicate alien status, Latin appearance has only minor probative value in determining if a suspect has entered the country illegally.

Likewise, the Mustang's route of travel and California license plates have little probative value in determining if the officers had a reasonable suspicion to stop the vehicle. The officers testified that I-15 is frequently used by those involved in transporting illegal aliens from the California-Mexico border to destinations north and east of California. However, I-15 is also the only major interstate highway for legal traffic to locations northeast of Southern California. It seems unlikely that illegal alien transporters comprise a significant portion of interstate traffic on I-15 at distances as far from the Mexican border as St. George, Utah.

Similarly, the time of year and the time of day of the stop have little relevance. Although the density of the traffic on I-15 varies, travelers use the interstate highway at all times of the day and night and at all times of the year. See, e.g., United States v. Shields, 534 F.2d 605, 608 (5th Cir.1976). But cf. United States v. Quiroz-Carrasco, 565 F.2d 1328, 1330 (5th Cir.1978) (defendants stopped on a road at a time when virtually no local traffic was present).

The officers also testified that they relied on defendants' erratic driving behavior in deciding to stop the Mustang. When asked to describe this behavior more specifically, however, they merely cited defendants' initial...