U.S. v. Garcia-Camacho

• Decision Date: 17 April 1995
• Docket Number: GUTIERREZ-ROSALE,D,94-10189,GARCIA-CAMACH,Nos. 94-10162,s. 94-10162
• Citation: 53 F.3d 244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eduardo A.efendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 244

53 F.3d 244

UNITED STATES of America, Plaintiff-Appellee, v. Eduardo A. GARCIA-CAMACHO, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesus GUTIERREZ-ROSALES, Defendant-Appellant.

Nos. 94-10162, 94-10189.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 13, 1995.

Decided April 17, 1995.

Salvatore Sciandra, Fresno, CA, for defendant-appellant Garcia-Camacho.

Ann Hardgrove Voris, Asst. Federal Public Defender, Fresno, CA, for defendant-appellant Gutierrez-Rosales.

Karen A. Kalmanir, Asst. U.S. Atty., Fresno, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: TANG and O'SCANNLAIN, Circuit Judges, and MERHIGE, Jr., ^* District Judge.

TANG, Senior Circuit Judge:

Defendant Eduardo Garcia-Camacho and Defendant Jose Jesus Gutierrez-Rosales appeal the denial of their motions to suppress evidence seized after an investigatory stop by U.S. Border Patrol Agents. Defendants claim the agents did not have reasonable suspicion to stop their pickup truck and thus conducted an illegal search and seizure in violation of the Fourth Amendment. The district court held an evidentiary hearing and denied defendants' motions to suppress. Defendants subsequently pleaded guilty under 21 U.S.C. Secs. 841(a)(1) and 846 to conspiring to manufacture methamphetamine. We have jurisdiction under 28 U.S.C. Sec. 1291 and we reverse.

BACKGROUND

On September 27, 1993 at approximately 7:30 a.m., Border Patrol Agent Bernardo Madrid observed a Chevrolet pickup truck with a camper top travelling northbound on Interstate 5 near Grapevine, California. Grapevine is located approximately 300 miles from the United States-Mexico border. Defendant Garcia-Camacho drove the truck and defendant Gutierrez-Rosales was his passenger. At the time of the observation, Agent Madrid and his partner, Neil Jensen, were on the side of the highway and were in the process of unloading eleven undocumented aliens from a van that they had stopped approximately five to eight minutes prior to observing defendants' truck.

When Madrid first noticed the truck, it was in the far left-hand lane, three lanes away from him, and it was going a little faster than the flow of traffic. The truck made a lane change when it passed Madrid's location. Madrid testified that defendants stared straight ahead as they passed him, but that shortly thereafter, defendant Gutierrez-Rosales turned around and looked toward him. Madrid testified that the look on Gutierrez-Rosales' face was one of "surprise," and the kind of look that "illegal aliens get when they are about to run." Madrid further testified that the truck started to accelerate shortly after passing him.

Based on these observations, and his belief that Interstate 5 was "the fastest route to economic opportunities," Madrid became suspicious that illegal aliens were being transported in the truck bed. Madrid and Jensen entered their Border Patrol car and proceeded to follow the truck. While following the truck, Madrid noticed the truck was heavily ladened and was reacting to bumps similarly to the van that he had just stopped. The agents believed they had reasonable suspicion at this time that the defendants were transporting illegal aliens, so they turned on their emergency lights. The truck "slowed to normal freeway speed, but continued on for some distance"--approximately one to one-and-a-half miles--before pulling over.

When Madrid and his partner approached the truck, they noticed several gray five gallon containers, sacks of chemicals, and a gas cylinder in the truck bed. The agents recognized the equipment as those used in manufacturing methamphetamine. The agents then approached Garcia-Camacho and Gutierrez-Rosales and asked them about their citizenship and place of birth. When the defendants said they were illegal aliens, the agents arrested them.

In addition to the methamphetamine manufacturing equipment, the agents also found in the front seat of the truck a nine millimeter handgun, papers indicating Gutierrez-Rosales' ownership of the gun, and a bag of red phosphorous. ¹ The defendants moved to suppress this evidence--consisting of the gun, papers indicating defendant Gutierrez-Rosales' ownership of the gun, the red phosphorous, defendants' statements to the agents, and the methamphetamine manufacturing equipment--on the ground that the agents lacked reasonable suspicion to stop defendants' truck.

The district court held an evidentiary hearing and denied defendants' motions to suppress. The court stated that "the testimony of [Agent Madrid] makes it clear that he had articulable suspicions based upon the facial expression of the passenger when he made eye contact and based upon the heavy load apparently concealed in the truck bed."

As a "mixed question of law and fact, we review de novo whether reasonable suspicion existed for the investigatory stop." United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992) opinion amended on denial of rehearing by 997 F.2d 1306 (9th Cir.1993) (amendments not relevant to the discussion). We conclude the agents did not have reasonable suspicion.

DISCUSSION

The Fourth Amendment's prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607 (1975). An officer may not detain

                a motorist without a showing of "reasonable suspicion."  Rodriguez, 976 F.2d at 594.   This "objective basis, or 'reasonable suspicion,' must consist of 'specific, articulable facts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.' "  Id. (citations omitted).  A "gloss on this rule prohibits reasonable suspicion from being based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped."  United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir.1994)
                

A.

In Rodriguez, the court found the following factors insufficient to support a finding of reasonable suspicion:

(1) interstate 8 is a "notorious route for alien smugglers";

(2) defendant did not acknowledge the agents as he passed their marked car;

(3) defendant's car was of a kind agents thought could be used for alien smuggling;

(4) although the agents saw only the defendant in the car, it appeared to be "heavily loaded" and "kind of floated" over bumps in the road;

(5) defendant is a Hispanic male;

(6) while being followed, defendant looked at the agents several times in his rear-view mirror and swerved slightly within his lane.

The court found these factors insufficient because, inter alia, the profile tendered by the agents was "calculated to draw into the law enforcement net a generality of persons unmarked by any really articulable basis for reasonable suspicion." Rodriguez, 976 F.2d at 596.

In the instant case, Agent Madrid tendered a profile very similar to the profile that was held insufficient in Rodriguez: ²

(1) interstate 5 is the "quickest route to economic opportunities" for illegal aliens;

(2) defendants looked straight ahead and did not acknowledge Agent Madrid or his partner;

(3) Garcia-Camacho's truck was of a kind that Agent Madrid thought could be used for alien smuggling;

(4) the truck appeared heavily ladened based on the way it reacted to bumps;

(5) defendants are Hispanic males;

(6) Garcia-Camacho was driving the truck faster than the flow of traffic, the truck appeared to accelerate as it passed agent Madrid's position, and the truck made a lane change near Madrid's position;

(7) shortly after the truck passed the location of Agent Madrid, the passenger turned toward Madrid with a "surprised" and "terrified" look on his face;

(8) the truck proceeded for "some distance"--around one to one-and-a-half miles--before pulling over; ³ Here, factors (1) through (5) are virtually identical to the factors that were insufficient in Rodriguez. Moreover, factor (2) can no longer be accorded any weight. This court recently stated in Gonzalez-Rivera v. INS, 22 F.3d 1441, 1446 (9th Cir.1994), that "[u]nder Ninth Circuit law, a driver's failure to look at the Border Patrol cannot weigh in the balance of whether there existed reasonable suspicion for a stop." The court stated:

A driver's failure to look at the border patrol car [cannot be used to justify the agent's suspicion] since the opposite reaction, a driver's repeated glancing at a Border Patrol car, can also be used to justify the agent's suspicion. To give weight to this type of justification "would put the officers in a classic 'heads I win, tails you lose' position [and] the driver, of course, can only lose."

Id. at 1447 (citation omitted).

The remaining factors add little or nothing to the government's case. Factor (6), like factor (2) above, falls into the classic "heads I win, tails you lose" trap. The government here argues that going faster than the flow of traffic and accelerating after passing Agent Madrid's position is suspicious. In United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir.1989), however, the government argued that the "reduction in speed from 65 to 55 m.p.h." constituted suspicious conduct. Id. at 1418 (emphasis added). ⁴ Presumably, the only nonsuspicious conduct would be if the driver kept constant speed while passing a Border Patrol car. ⁵ No circuit has yet demanded such exactness in driving.

Moreover, it is perfectly consistent with innocent driving that a driver might slow down near a Border Patrol car because other drivers are slowing down, pass the slower drivers, and then speed up once the driver has passed the scene. See U.S. v. Robert L., 874 F.2d 701, 703-04 (9th Cir.1989) (leaving scene of accident at a "quicker pace" than other traffic and later "swerv[ing]" from the left lane...