U.S. v. Chavez-Reyes, CHAVEZ-REYE

• Decision Date: 13 December 1990
• Docket Number: No. 90-10184,D,CHAVEZ-REYE,90-10184
• Citation: 921 F.2d 281
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff/Appellee, v. Manuelefendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 281

921 F.2d 281

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff/Appellee, v. Manuel CHAVEZ-REYES, Defendant/Appellant.

No. 90-10184.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1990. ^*

Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and WALLACE, NELSON, Circuit Judges.

MEMORANDUM ^**

The issue in this appeal is whether founded suspicion existed to justify the investigatory stop of a vehicle. We find that it did not and therefore reverse.

In the final analysis, the district court based its denial of defendant's motion to suppress on three factors: the rapid deceleration from 65 to 50 miles per hour when the police pulled up behind him; his quick glance at the marked Border Patrol car when it was beside the truck followed by his refusal to look back; and defendant's nervous demeanor.

Under governing case law, these are simply not sufficient to establish reasonable suspicion. A quasi-identical fidgeting, reduction of speed and avoidance of eye contact occurred in U.S. v. Hernandez-Alvarado, 891 F.2d 1414, 1418, 1419 n. 6 (9th Cir.1989), and we found them inadequate. ¹

As for the so-called unusual aspect of the vehicle--which the trial judge himself apparently disregarded--or the alleged "tip information" regarding flatbed trucks, they fail to rise to the level of particularized suspicion required under the law.

The government's failure to distinguish Hernandez-Alvarado and to convince us to reach a different result is readily explained: it could not and therefore we do not. Accordingly, the judgment of the district court is REVERSED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 In particular, we wrote: "In fact, avoidance of eye contact has been deemed an inappropriate factor to consider unless 'special circumstances [ ] make innocent avoidance of eye contact improbable.' ... Here, the fact that [defendant] was driving precludes the presence of any such circumstances." Id. at 1419 n. 6 (citation omitted).