U.S. v. Cantu, MENDOZA-ACOST

• Decision Date: 21 June 1996
• Docket Number: D,No. 95-2211,MENDOZA-ACOST,95-2211
• Citation: 87 F.3d 1118
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Raul Garza CANTU and Irma Leticiaefendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1118

87 F.3d 1118

UNITED STATES of America, Plaintiff-Appellant, v. Raul Garza CANTU and Irma Leticia MENDOZA-ACOSTA,

Defendants-Appellees.

No. 95-2211.

United States Court of Appeals, Tenth Circuit.

June 21, 1996.

Fred J. Federici, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Las Cruces, New Mexico, for Plaintiff-Appellant.

Charles A. Harwood, Silver City, New Mexico (Carmen E. Garza and F. Mario Ortiz, Las Cruces, New Mexico, on the brief), for Defendants-Appellees.

Before ANDERSON, BALDOCK, and HENRY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendants Raul Garza Cantu and Irma Leticia Mendoza-Acosta were indicted on one count of possession with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. § 841(a), and one count of conspiracy to commit the same in violation of 21 U.S.C. § 846. Defendants moved to suppress the evidence resulting from a border patrol agent's stop of their vehicle. The agent stopped the vehicle near a border patrol checkpoint in southern New Mexico on the suspicion that Defendants were operating a "scout" car as part of a marijuana smuggling scheme. The district court granted Defendants' motion, and the government appealed. We exercise jurisdiction under 18 U.S.C. § 3731.

Well established standards govern our review of a district court's ruling on a motion to suppress. Considering the evidence in a light most favorable to the prevailing party, we accept the district court's factual findings unless those findings are clearly erroneous. United States v. Parker, 72 F.3d 1444, 1449 (10th Cir.1995). The district court's determination of reasonableness under the Fourth Amendment, however, is a question of law reviewable de novo. United States v. Martinez-Cigarroa, 44 F.3d 908, 910 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1386, 131 L.Ed.2d 238 (1995). Applying these standards, we reverse.

I.

On April 11, 1995, at about 3:00 a.m., a red Mercury Grand Marquis entered the permanent border patrol checkpoint located on state highway 70 in Otero County, New Mexico. The checkpoint lies approximately thirteen miles west of Alamogordo, New Mexico, and ninety miles north of the United States/Mexican border. Agent Santiago Silva, a ten-year veteran of the border patrol, asked the driver of the Mercury, Defendant Cantu, and his passenger, Defendant Mendoza-Acosta, whether they were United States citizens. Defendant Cantu responded that they were, but Defendant Mendoza-Acosta responded by producing a resident alien card. Agent Silva then asked the couple where they were traveling. Defendant Cantu responded that they were traveling to Alamogordo, New Mexico, where they lived. Agent Silva then allowed the Mercury to pass the checkpoint. As the Mercury was leaving, Agent Silva noticed the vehicle had a Texas license plate.

The next vehicle to enter the checkpoint was a Chevrolet pick-up truck with a camper shell and Oregon license plates. Victor Ernesto Mendoza (Mendoza) was the driver and sole occupant. The pick-up arrived at the checkpoint around ten minutes after the Mercury, at about 3:10 a.m. While speaking with Mendoza, Agent Silva noticed a discrepancy between the inner ceiling and outer roof of the truck's camper shell. Agent Silva directed Mendoza to the secondary checkpoint for further questioning. Agent Fernando Zepeda, a six-year veteran of the border patrol, joined Agent Silva at the secondary checkpoint. The agents requested permission to search Mendoza's truck. Mendoza consented. The agents subsequently uncovered approximately 281.9 pounds of marijuana hidden in the camper shell. During their search, the agents also located a cellular telephone inside the pick-up.

After discovering the marijuana, Agent Silva told Agent Zepeda about the Mercury which had cleared the checkpoint ten minutes prior to Mendoza's arrival. The agents discussed whether the Mercury may have been a "scout" car. ¹ Agent Zepeda drove east toward Alamogordo to determine if the Mercury was still in the area. Four miles east of the checkpoint, Agent Zepeda saw the Mercury heading back west toward the checkpoint, away from Alamogordo and the direction Defendants told Agent Silva they were heading. Agent Zepeda radioed Agent Silva and asked him to identify the Mercury as it passed the checkpoint headed west. Agent Silva positively identified the Mercury. At approximately 3:36 a.m., Agent Zepeda stopped the Mercury just west of the checkpoint.

Upon questioning, Defendant Cantu acknowledged that he had cleared the checkpoint a few moments earlier headed east. Defendant Cantu further informed Agent Zepeda that he and Defendant Mendoza-Acosta had decided not to go to Alamogordo, but to return home instead. Agent Zepeda then requested identification. Agent Zepeda immediately recognized that Defendant Mendoza-Acosta and Victor Ernesto Mendoza might be related. The two Defendants voluntarily agreed to return to the checkpoint for further questioning. Defendant Cantu subsequently acknowledged that he owned the pick-up truck in which agents found the marijuana.

At the suppression hearing, both Agents Silva and Zepeda presented uncontradicted testimony consistent with the district court's findings of fact and the foregoing. ² Based upon those facts, the district court concluded that Agent Zepeda did not have reasonable suspicion to stop Defendants' vehicle. Accordingly, the district court granted Defendants' motion to suppress all physical evidence against them.

II.

Border patrol agents "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 those vehicles' occupants may be involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581-82, 45 L.Ed.2d 607 (1975). "[A]ny number of factors" might contribute to an agent's decision to stop a vehicle on reasonable suspicion. Id. The law does not specify a "minimum number of factors necessary to constitute reasonable suspicion or any outcome determinative criteria." United States v. Lopez-Martinez, 25 F.3d 1481, 1484 (10th Cir.1994). Each case turns upon its own facts. United States v. Martin, 15 F.3d 943, 950 (10th Cir.), on reh'g in part, 18 F.3d 1515 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 187, 130 L.Ed.2d 121 (1994). In all instances, however, the agent "is entitled to assess the facts in light of his experience" in detecting criminal activity. Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582. Law enforcement officers may perceive meaning in actions that appear innocuous to the untrained observer. Brown v. Texas, 443 U.S. 47, 52 & n. 2, 99 S.Ct. 2637, 2641 & n. 2, 61 L.Ed.2d 357 (1979). This is not to say that an agent may stop a vehicle on an "unparticularized suspicion or hunch." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). While the necessary "level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence," the Fourth Amendment requires " 'some minimal level of objective justification.' " United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting I.N.S. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)).

In determining whether a roving border patrol agent had reasonable suspicion to stop a vehicle, we look at the totality of the circumstances, or, in other words, "the whole picture." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). The totality of the circumstances must create a "particularized and objective basis for suspecting the ... person stopped of criminal activity." Id. at 417-18, 101 S.Ct. at 694-95. The agent's assessment of the circumstances may depend upon objective observations, information obtained from individuals, reports, or other sources, and "consideration of the modes and patterns of operation of certain kinds of lawbreakers." Id. at 418, 101 S.Ct. at 695. "The process does not deal with hard certainties, but with probabilities" based upon evidence "as understood by those versed in the field of law enforcement." Id.

On two occasions we have applied the preceding principles of law to determine the constitutionality of a roving border patrol agent's stop of a suspected scout car. In United States v. Martinez-Cigarroa, 44 F.3d 908 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1386, 131 L.Ed.2d 238 (1995), we held that a roving border patrol agent did not have reasonable suspicion to stop defendants' vehicle. In United States v. Carter, No. 94-2081, 42 F.3d 1406, 1994 WL...