U.S. v. Hernandez-Alvarado

• Decision Date: 14 December 1989
• Docket Number: D,No. 88-1265,HERNANDEZ-ALVARAD,88-1265
• Citation: 891 F.2d 1414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franciscoefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1414

891 F.2d 1414

UNITED STATES of America, Plaintiff-Appellee, v. Francisco HERNANDEZ-ALVARADO, Defendant-Appellant.

No. 88-1265.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 9, 1989.

Decided Dec. 14, 1989.

Jose H. Robles, Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellant.

Janet K. Johnson, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

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

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

NELSON, Circuit Judge:

Defendant Hernandez-Alvarado appeals the district court's conviction and denial of his motion to suppress evidence. ¹ Defendant claims that police officers did not have reasonable suspicion to stop his car, and thus conducted an illegal search and seizure in violation of the fourth amendment. We agree and reverse the district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 1987, United States Border Patrol Agents Christopher Truty and Diane Smith were conducting traffic surveillance on Interstate Highway 19 near Nogales, Arizona. As they headed northbound, approximately eight kilometers from the Mexican border, they saw defendant's beige Oldsmobile traveling in front of them. Agent Truty noticed that defendant's vehicle had a large trunk capacity, capable of carrying contraband.

Truty pulled up alongside defendant's vehicle and saw defendant and two passengers, a nine or ten-year-old and an older woman, sitting in the front seat of the car. ² Hernandez-Alvarado looked toward the agents, then quickly turned away and directed his attention to the road. All three occupants were sitting in a rigid and uptight manner, were not speaking to each other, and appeared to have "tunnel vision." Hernandez-Alvarado reduced his speed from 65 miles per hour to 55 miles per hour. The posted speed limit was 65 miles per hour. Agent Truty was suspicious of this behavior and dropped back to follow the vehicle.

From behind, Truty noted several factors which led him to believe he had reasonable suspicion to stop the defendant. First, Hernandez-Alvarado's car displayed a "Best Deal Auto" license plate frame. Truty stated that Best Deal Auto was an auto dealership known among Nogales area agents as notorious for narcotics activity. Nogales agents had seized marijuana from several vehicles bearing the "Best Deal Auto" logo; however, Truty stated that he believed law-abiding citizens also purchased vehicles at the dealership. We have no statistics concerning the number of car dealerships in Nogales or the number of cars sold to innocent people by Best Deal Auto.

Truty further noticed an antenna protruding from defendant's trunk. Drug smugglers frequently use radios with such antennas to communicate with co-conspirators, but Truty did not notice any gestures to indicate that defendant used a radio.

Truty decided to check the vehicle's registration. While waiting for the results, he continued following defendant's vehicle, which maintained a speed of 55 miles per hour and proceeded in a very cautious manner. Hernandez-Alvarado looked in his rearview mirror at the agents several times but never attempted to evade the agents or exit the interstate on one of the two off-ramps passed.

The registration check revealed that the car's owner lived in the Monte Carlo neighborhood of Nogales, Arizona, a neighborhood adjacent to the Mexican border. There were indications that narcotics had been smuggled across the border into Monte Carlo during the preceding two weeks. The neighborhood was under investigation for narcotics activity, but the particular address on the vehicle's registration was not under investigation.

Based on the above factors, Truty pulled defendant's vehicle over about 10 kilometers from where the car first attracted his attention. The agents found about 258 pounds of marijuana in Hernandez-Alvarado's trunk. Defendant was charged with one count of possession with intent to distribute 100-1000 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1) and 841 U.S.C. § 841(b)(1)(B)(vii) on January 13, 1988. Defendant filed a pre-trial motion to suppress the evidence found in the trunk, claiming the agents had no reasonable suspicion to stop his car. The motion was denied on March 3, 1988. A jury found Hernandez-Alvarado guilty as charged on March 8, 1988. He was sentenced to a five-year prison term with a four-year special parole term.

DISCUSSION

Whether Truty had reasonable suspicion to justify an investigatory stop is a mixed question of law and fact which we review de novo. United States v. Thomas, 844 F.2d 678, 680 (9th Cir.1988). An officer may make an investigatory stop if he is aware of specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person detained is engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 416-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). Such determination is not readily reduced to "a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). The officer must consider the "totality of the circumstances--the whole picture." United States v. Sokolow, --- U.S. ----, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Cortez, 449 U.S. at 418, 101 S.Ct. at 695).

The facts are to be interpreted in the light of a trained officer's experience. Cortez, 449 U.S. at 418, 101 S.Ct. at 695. They must, however, be more than the mere subjective impressions of a particular officer. Permissible deductions or rational inferences must be grounded in objective facts and be capable of rational explanation; "while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop." Nicacio v. United States I.N.S., 797 F.2d 700, 705 (9th Cir.1985).

The facts of this case present a close question as to whether or not there was reasonable suspicion under the above guidelines. The factors known to Agent Truty at the time he stopped defendant present a "totality of circumstances" that seems to fall somewhere between cases which have found reasonable suspicion and those which have not. Thus, before analyzing the instant case, it is useful to survey the relevant caselaw with respect to this issue.

I. Cases which have found no reasonable suspicion.

In the landmark case of United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court held that officers may not arbitrarily stop all persons of Mexican appearance and question them about their citizenship without any reasonable suspicion that they are illegal aliens. Although there was no reasonable suspicion in Brignoni-Ponce, the court articulated certain factors an officer may consider in determining reasonable suspicion. They include the characteristics of the area in which they encounter a vehicle, proximity to the border, usual patterns of traffic, recent illegal border crossings, a driver's behavior, and aspects of the vehicle itself. Id. at 884-85, 95 S.Ct. at 2581-82. Subsequent interpretations of these factors have created a highly inconsistent body of law, and some of the factors have been given lesser weight in contexts other than illegal alien smuggling.

In United States v. Carrizoza-Gaxiola, 523 F.2d 239 (9th Cir. 1975), state and federal officers were engaged in a joint effort to intercept stolen cars being transported into Mexico at Nogales, Arizona. Each week, about 30 late-model Ford LTDs were stolen, and some of them were discovered in Mexico. Based on this information, officers stopped defendant due to his Mexican appearance and the fact that he was driving from Tucson to Nogales in a late-model Ford LTD which appeared to be brand new. The Ninth Circuit held that the officers lacked reasonable suspicion.

In the narcotics arena, this court found no reasonable suspicion in United States v. Morrison, 546 F.2d 319 (9th Cir.1976), where defendant's ten-year-old car was dust-free, unfamiliar to officers, had a large trunk, bore an out-of-town license plate frame, and was traveling two and a half miles from the border on a highway in a notorious drug-smuggling area. Three years later, in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Supreme Court held that without any specific indication that suspects have been engaged in criminal activity, police officers do not have reasonable suspicion to justify an investigatory stop. In Brown, the officers had detained two men walking away from each other in an alley in an area with a high incidence of drug traffic. The officers believed the men had just met or were about to meet for a drug transaction when their patrol car appeared but, as "the appellant's activity was no different from the activity of other pedestrians in that neighborhood," the investigatory stop was not justified. ³ Id. at 52, 99 S.Ct. at 2641.

II. Cases which have found reasonable suspicion.

When courts have upheld a finding of reasonable suspicion, it has been on the basis of more particularized information. In United States v. Garcia-Nunez, 709 F.2d 559 (9th Cir.1983), officers had received an anonymous tip that a specific address and vehicle were being used for smuggling aliens. ⁴ Upon investigation of the tip, officers observed such particularized behavior as a man conducting "counter-surveillance" and serving as a lookout. On the lookout's signal, four men walked hurriedly from the suspect's house to the exact car identified in the tip. The men sat low in the rear seat and appeared to be of Mexican descent. The court held that these factors together supported a finding of reasonable suspicion.

In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), officers had on several occasions observed the tracks of 8 to 20 pe...