U.S. v. Berber-Tinoco

• Decision Date: 19 December 2007
• Docket Number: No. 06-50684.,06-50684.
• Citation: 510 F.3d 1083
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David BERBER-TINOCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

510 F.3d 1083

UNITED STATES of America, Plaintiff-Appellee, v. David BERBER-TINOCO, Defendant-Appellant.

No. 06-50684.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 27, 2007.

Filed December 19, 2007.

James Fife, Federal Defenders of San Diego, Inc., San Diego, CA, for defendant-appellant.

David D. Leshner, Assistant United States Attorney, Office of the United States Attorney, San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Roger T. Benitez, District Judge, Presiding. D.C. No. CR-06-00468-RTB.

Before: J. CLIFFORD WALLACE, T.G. NELSON, and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

We consider the challenge brought by David Berber-Tinoco to the district court's denial of his motion to suppress. Berber sought to suppress his statements and fingerprints which were taken pursuant to an arrest by Border Patrol officers. Berber argues that the officers lacked reasonable suspicion to stop him, and also argues that we must reverse the district court's ruling due to misconduct by the district court judge during the suppression hearing. We hold that there was reasonable suspicion for the stop and that the judge's violation of Rule 605 of the Federal Rules of Evidence was harmless. Therefore, we affirm.

I

Around 10:30 on the night of February 9, 2006, Border Patrol Officers Thomas Englehorn and Robert Lenoir were positioned in their vehicles at different spots on Lyons Valley Road between Honey Springs and Japatul Valley Road. This area is completely rural with no residences and no businesses other than a juvenile detention center and a fire station. Two hours earlier, a seismic intrusion device had been activated. Based on their experience, the officers knew that it would take an alien crossing the border approximately two hours to get to this site, which was a notorious smuggling area with known load sites for aliens.

From his position at the Japatul Fire Station off of Lyons Valley Road, Officer Engelhorn saw two vehicles, a Dodge Durango and a Ford pickup truck, approach the area. Already on the look-out for smuggling because of the alarm from the seismic intrusion device, Officer Engelhorn became suspicious when he observed the two vehicles driving "right next to each other, not more than a car or two car lengths apart, traveling at a slow rate of speed." The cars repeatedly braked and then continued at their slow speed until they were out of Officer Engelhorn's view. Officer Engelhorn did not stop the vehicles at that point; he wanted to see if the two vehicles continued westbound in the same direction toward Honey Springs, which would suggest the vehicles were merely local traffic.

After the vehicles left his sight, Officer Engelhorn pulled out and followed the vehicles westbound toward the juvenile detention center. Given the terrain and the officer's attempt to remain undetected, he did not have the cars within his vision the entire time. He then saw the two cars turn around at the detention center and return eastbound. The Durango passed him, and the pickup truck pulled over between a 15-mile marker and the detention center. It then pulled out again and continued east.

According to Officer Engelhorn, the area where the vehicles were turning around was heavily used for loading aliens. He testified that "based on [his] experience, it's almost a nightly occurrence between there and the 15-mile marker and the ... fire station." Given the alarm from the seismic intrusion device, the timing when the vehicles approached the area, and their conduct which included turning around at known loading spots, the officer believed the vehicles were loading up with illegal aliens as part of a smuggling operation. Relying on this evidence and their suspicions, the officers made an investigatory stop of the two vehicles at that point.

Berber, a passenger in one of the vehicles, was arrested and charged with unlawful re-entry into the United States after deportation in violation of 8 U.S.C. § 1326.¹ Berber filed a motion to suppress evidence of his fingerprints and statements to the officers as the fruits of an allegedly unlawful stop. After an evidentiary hearing, the district court denied the motion to suppress. Berber entered into a conditional guilty plea agreement that allowed him to appeal this ruling.

II

We review de novo whether the officers had reasonable suspicion to make an investigatory stop. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). We review the district court's findings of fact for clear error. Id.; United States v. Tiong, 224 F.3d 1136, 1139 (9th Cir.2000).

The Fourth Amendment right to be secure from unreasonable searches and seizures by the government "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). A brief investigatory stop does not violate the Fourth Amendment, however, "if the officer has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

In determining whether a stop was justified by a reasonable suspicion, we consider whether, in light of the totality of the circumstances, the officer had "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). For purposes of this analysis, the totality of the circumstances includes "objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of law-breakers." Id. at 418, 101 S.Ct. 690. In the context of border patrol stops, the totality of the circumstances may include "(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including `obvious attempts to evade officers'; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8) officer experience." United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir.1997) (quoting Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. 2574).

As noted above, in order to uphold the validity of the investigatory stop, we must discern from this melange of factors "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, 449 U.S. at 417-18, 101 S.Ct. 690. Often, the data in the record seems equally capable of supporting an innocent explanation as a reasonable suspicion. In such cases, the Supreme Court directs us to give due weight to the factual inferences drawn by law enforcement officers, United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), and has noted that officers may make reasonable deductions and inferences based on their experience and specialized training that "might well elude an untrained person." Id. at 273, 122 S.Ct. 744 (internal quotation marks omitted). In this vein, the Court has emphasized that even when factors considered in isolation from each other are susceptible to an innocent explanation, they may collectively amount to a reasonable suspicion. Id. at 274, 122 S.Ct. 744. Of course, officers cannot rely solely on factors that would apply to many law-abiding citizens. See, e.g., United States v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir.2002) ("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.") (internal quotation marks omitted); United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1127 (9th Cir.2002) (holding that there was no reasonable suspicion where the factors underlying the suspicion depicted "`a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure'") (quoting Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)). However, the Supreme Court prohibits courts from adopting a "divide-and-conquer analysis" by looking at each factor in isolation and according it no weight if it is susceptible to an innocent explanation. Arvizu, 534 U.S. at 274, 122 S.Ct. 744.

A reasonable suspicion of criminal activity may be sufficiently particularized where officers have narrowed the time and place of expected criminal activity through deduction or through a reliable tip. See, e.g., United States v. Paopao, 469 F.3d 760, 766-67 (9th Cir.2006) (holding there was reasonable suspicion for a protective sweep based on a reasonably detailed tip from a reliable informant); see also Cortez, 449 U.S. at 419-20, 101 S.Ct. 690. In Cortez, border patrol agents deduced solely from their observation of footprints in the desert that groups of aliens, probably led by a guide, were crossing the border and proceeding 30 miles to an isolated point on Highway 86. Based on their experience, the officers further deduced that another crossing was likely to occur on the next clear night, and that a group would likely arrive at the highway between 2 a.m. and 6 a.m. In light of these "permissible deductions," id. at 419, 101 S.Ct. 690, the Supreme Court concluded that the officers had a reasonable suspicion to stop a pickup truck with a camper shell (the sort of vehicle the officers expected would be used to carry aliens that night) that passed a crossing point twice. Id. at 413-15, 421-22, 101 S.Ct. 690; see also United States v. Ordaz, 145 F.3d 1111 (9th Cir.1998) (holding that the fact that the officers knew that...