U.S. v. Heredia-Quiroz

• Decision Date: 27 April 1993
• Docket Number: D,HEREDIA-QUIRO,No. 92-10521,92-10521
• Citation: 993 F.2d 885
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Victor Manuelefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 885

993 F.2d 885

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 92-10521.

United States Court of Appeals, Ninth Circuit.

Submitted April 27, 1993. ^*

Decided May 17, 1993.

Before: BROWNING, KOZINSKI, and RYMER, Circuit Judges.

MEMORANDUM ^**

Victor Manuel Heredia-Quiroz appeals his conviction following a conditional guilty plea to transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B). Heredia-Quiroz contends the district court erred by denying his motion to suppress evidence because Border Patrol Agent Gomez lacked founded suspicion to stop the vehicle Heredia-Quiroz was driving. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review for clear error the district court's factual findings and de novo whether those facts provide founded suspicion to justify an investigatory stop of a vehicle. United States v. Santamaria-Hernandez, 968 F.2d 980, 983 n. 3 (9th Cir.1992).

The Fourth Amendment prohibits an officer from stopping a vehicle without founded suspicion of criminal conduct at the time of the stop. United States v. Salinas, 940 F.2d 392, 394 (9th Cir.1991). "The determination whether founded suspicion existed must be based on 'the totality of the circumstances--the whole picture.' " Santamaria-Herndandez, 968 F.2d at 983 (footnote omitted) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). " '[T]he detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Id. (quoting Cortez, 449 U.S. at 417-18); see also Salinas, 940 F.2d at 394 ("Founded suspicion exists when an officer is aware of specific articulable facts, that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime."). "The facts are to be interpreted in light of a trained officer's experience." United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989).

Here, Agent Gomez testified to the following facts at the suppression hearing. At approximately 8:30 at night, while observing a store parking lot located approximately fifty feet from the international border with Mexico and notorious for being a pickup point for illegal aliens, Agent Gomez noticed a brown Chevrolet station wagon parked in the lot. His attention was drawn to the car because it was parked in a dark corner of the otherwise well-lit parking lot. Agent Gomez could see two persons silhouetted inside the car. Agent Gomez then saw a third person approach the car and get in. He watched the car drive to a nearby gas station. Suspecting that the occupants of the car might be involved in alien smuggling, Agent Gomez drove one mile north on the main highway and concealed his patrol vehicle at a three-way intersection to see if the station wagon would drive past his position.

Within about fifteen minutes, Agent Gomez saw the same brown station wagon driving northbound along the highway at approximately 15-20 miles per hour in a 50 or 55 mile per hour zone. The station wagon stopped short of Agent Gomez' position, executed a u-turn, and pulled off of the highway facing southward. Using binoculars, Agent Gomez saw one of the passengers get out of the station wagon. This person whistled into the desert two or three times. Agent Gomez did not see anyone come out of the desert and get into the car. After the passenger got back into the station wagon, it drove northbound past Agent Gomez's position and then executed another u-turn, driving southbound past Agent Gomez again. ¹

At this point, Agent Gomez concluded that the occupants of the station wagon were looking for a load of illegal aliens. Agent Gomez...