U.S. v. Cortez, HERNANDEZ-LOER

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CHAMBERS and HUG; HUG; CHAMBERS
Citation595 F.2d 505
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jesus E. CORTEZ, a/k/a Jesus E. Cortez-Espinoza, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pedroefendant-Appellant.
Decision Date19 April 1979
Docket NumberNos. 77-1987,D,77-1951,HERNANDEZ-LOER

Page 505

595 F.2d 505
UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus E. CORTEZ, a/k/a Jesus E. Cortez-Espinoza,
Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Pedro HERNANDEZ-LOERA, Defendant-Appellant.
Nos. 77-1987, 77-1951.
United States Court of Appeals,
Ninth Circuit.
April 19, 1979.

Page 506

Tom O'Toole, Tucson, Ariz., for defendants-appellants.

Michael D. Hawkins, Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CHAMBERS and HUG, Circuit Judges, and FERGUSON *, District Judge.

HUG, Circuit Judge:

Jesus E. Cortez-Espinoza (Cortez) and Pedro Hernandez-Loera (Hernandez) appeal from convictions for knowing transportation of illegal aliens, 8 U.S.C. § 1324(a)(2), contending that the evidence used against them was the product of an illegal vehicle stop by border patrol officers and should have been suppressed. We agree and therefore reverse.

In late December, 1976, border patrol officers found, in the southern Arizona desert, human tracks suggesting that a man, wearing shoes bearing a distinctive "chevron" sole pattern, was engaged in the practice of leading aliens illegally into the United States. The officers inferred from a study of the tracks that "Chevron", as they called him, led groups of from about eight to twenty aliens across the United States-Mexican border at night, on a journey of approximately twenty-five miles on foot to a point on Highway 86 near Sells, Arizona. Highway 86 runs generally east and west between Ajo, Arizona and Tucson. The tracks stopped at the highway and did not reappear anywhere nearby, which suggested to the officers that a vehicle had picked up the aliens. The officers' studies further indicated that Chevron led his groups into Arizona on Friday, Saturday, Sunday or Monday nights, but whether he led groups every weekend they did not know. No one had actually seen Chevron or one of his groups in transit. The latest set of tracks located before the night of the instant arrest was made on the night of Saturday, January 15-16, 1977.

On the Sunday night of January 30-31, 1977, officers Gray and Evans of the border patrol were on duty in the general area. They "felt" that Chevron would lead a new group that night. It was a hunch, because they had no reason to believe that Chevron operated every weekend, and there was no reason why the expedition could not have occurred on the following night.

The officers did not set up an observation point in the vicinity of the chevron tracks but instead, at about 1:00 A.M., Gray and Evans parked their patrol car about one hundred feet off the highway at a point some twenty-seven miles to the east of the place where the chevron tracks had disappeared in the past. They selected this location because they were primarily responsible for watching the Altar Valley area, where a small road joined the highway, but they believed they could also watch for Chevron's vehicle there.

Gray and Evans decided that in watching for Chevron's vehicle, they would limit their attention to certain kinds of vehicles, and within that class of vehicles, only to those vehicles which passed them travelling westward and returned approximately ninety minutes later, travelling eastward. The class included vans, campers and pickup trucks that could easily hide eight to twenty aliens without drawing attention from any law enforcement authority. The class did not include commercial-looking trucks, nor did it include station wagons or sedans, although the officers knew of the practice of secreting as many as eight aliens in the trunks or rear compartments of these vehicles.

Page 507

The officers also admitted that they had no reason to know that the vehicle assisting Chevron would approach from, and return to, the east rather than the west. They did not explain why such a vehicle could not approach the pick-up point from one direction and then continue in the same direction. They admitted that if Chevron had led a group across the border before dark that afternoon, he and his group could have been picked up and transported eastward, past the Gray-Evans checkpoint, before the two officers parked there at 1:00 A.M. They admitted that a vehicle could have passed them, gone to Sells, a town west of the chevron tracks, for legitimate purposes and returned within the ninety-minute time frame they established.

Gray and Evans saw two vehicles in this "profile" class, both campers, travelling westward that night. Shortly after 6:00 A.M., one of the two returned, heading east. As the vehicle went by, the officers did not see anyone in the camper, and on neither occasion was the driver speeding or otherwise behaving suspiciously. The officers turned on their flashing red lights and stopped the camper. The officers stated that they would have searched every single vehicle fitting the profile as it returned from the west.

Appellant Cortez was the driver and owner of the camper. When the truck was stopped, appellant Hernandez, wearing the "chevron" shoes, was sitting in the passenger's seat. In the rear compartment of the camper were six aliens who had illegally entered the United States with Hernandez earlier in the evening.

The issue is whether under the Fourth Amendment adequate cause existed to justify the stop of the camper. The courts have recognized that brief, investigatory stops under circumstances not constituting probable cause for arrest or search are permissible for effective law enforcement. United States v. Avalos-Ochoa, 557 F.2d 1299, 1301 (9th Cir. 1977).

The quantum of cause necessary in such cases was established by the Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). "(O)fficers 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". 422 U.S. at 884, 95 S.Ct. at 2582.

This lesser standard is justified on the theory that the Fourth Amendment must apply to a "stop", as well as to an arrest or seizure; however, because the intrusion upon privacy is not as great, the range of unreasonable police behavior is correspondingly less broad. United States v. Brignoni-Ponce, 422 U.S. at 779-81, 95 S.Ct. 2574; See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The Brignoni-Ponce test has often been referred to, in more general terms, as the "founded suspicion" test. See United States v. Avalos-Ochoa,557 F.2d at 1301; United States v. Rocha-Lopez, 527 F.2d 476 (9th Cir.), Cert. denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976). We will use that term. We must determine whether founded suspicion existed at the time the officers turned on the flashing red lights atop their vehicle; nothing that happened afterward can be relied upon to justify the stop. United States v. Morrison, 546 F.2d 319 (9th Cir. 1976); United States v. Avalos-Ochoa, 557 F.2d 1299.

Finally, we note that the ultimate question on appeal is whether the trial judge's finding that founded suspicion was present here was clearly erroneous. United States v. Patterson, 492 F.2d 995 (9th Cir.), Cert. denied, 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974); United States v. Thompson, 558 F.2d 522 (9th Cir. 1977); United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962) (En banc ).

The founded suspicion test plainly requires balancing of the facts of the particular case, see Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. 2574, and in such circumstances we will not find absolutely controlling precedent since the facts will differ. A case from our court which is quite closely related is United States v. Carrizoza-Gaxiola, 523 F.2d 239 (9th Cir. 1975).

Page 508

In that case, officers routinely stopped southbound vehicles in a "profile" class of automobile models thought likely to be stolen and transported from Phoenix or Tucson into Mexico. The "Profile " was, we may say, constructed from specific, articulable facts. Nevertheless, we said: "Founded suspicion requires some reasonable ground For singling out the person stopped as one who was involved ....

To continue reading

Request your trial
15 practice notes
  • U.S. v. Huberts, Nos. 79-1828
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 12, 1980
    ...923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974), and we will not reverse unless those findings are clearly erroneous. United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979); United States v. Wysong, 528 F.2d 345, 348 (9th Cir. Employing this standard of review, we conclude that the trial judg......
  • U.S. v. O'Connor, No. 80-1487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 17, 1981
    ...Perez-Esparza, 609 F.2d 1284, 1285-86 (9th Cir. 1980); United States v. Post, 607 F.2d 847, 849 (9th Cir. 1979); United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979), rev'd on other grounds, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). But see United States v. One Twin Engine B......
  • State v. Haworth, No. 13989
    • United States
    • Idaho Supreme Court
    • March 19, 1984
    ...personally tracked Chevron along this route for more than 22 miles. Both officers were unquestionably well-trained as trackers." Cortez, 595 F.2d at 505 (Chambers, J., No one should quarrel with that view. For certain I do not, but moreover note the illumination it puts on the High Court's ......
  • U.S. v. Post, No. 78-3733
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 11, 1979
    ...This court's review of the trial court's findings is to determine whether those findings are clearly erroneous. United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979); United States v. Wysong, 528 F.2d 345, 348 (9th Cir. 1976); Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963......
  • Request a trial to view additional results
15 cases
  • U.S. v. Huberts, Nos. 79-1828
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 12, 1980
    ...923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974), and we will not reverse unless those findings are clearly erroneous. United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979); United States v. Wysong, 528 F.2d 345, 348 (9th Cir. Employing this standard of review, we conclude that the trial judg......
  • U.S. v. O'Connor, No. 80-1487
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 17, 1981
    ...Perez-Esparza, 609 F.2d 1284, 1285-86 (9th Cir. 1980); United States v. Post, 607 F.2d 847, 849 (9th Cir. 1979); United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979), rev'd on other grounds, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). But see United States v. One Twin Engine B......
  • State v. Haworth, No. 13989
    • United States
    • Idaho Supreme Court
    • March 19, 1984
    ...personally tracked Chevron along this route for more than 22 miles. Both officers were unquestionably well-trained as trackers." Cortez, 595 F.2d at 505 (Chambers, J., No one should quarrel with that view. For certain I do not, but moreover note the illumination it puts on the High Court's ......
  • U.S. v. Post, No. 78-3733
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 11, 1979
    ...This court's review of the trial court's findings is to determine whether those findings are clearly erroneous. United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979); United States v. Wysong, 528 F.2d 345, 348 (9th Cir. 1976); Costello v. United States, 324 F.2d 260, 261 (9th Cir. 1963......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT