U.S. v. Jimenez-Medina

• Decision Date: 06 May 1999
• Docket Number: No. 97-10055,JIMENEZ-MEDIN,D,97-10055
• Citation: 173 F.3d 752
• Parties: 99 Cal. Daily Op. Serv. 3298, 1999 Daily Journal D.A.R. 4250 UNITED STATES of America, Plaintiff-Appellee, v. Fabian Joseefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 752

173 F.3d 752

99 Cal. Daily Op. Serv. 3298, 1999 Daily

Journal D.A.R. 4250

UNITED STATES of America, Plaintiff-Appellee, v. Fabian Jose JIMENEZ-MEDINA, Defendant-Appellant.

No. 97-10055.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1999.

Filed May 6, 1999.

Dennis Jones, Phoenix, Arizona, for the defendant-appellant.

James Burke, Assistant United States Attorney, Phoenix, Arizona, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblat, District Judge, Presiding. D.C. No. CR-96-00232-PGR.

Before: NOONAN and TROTT, Circuit Judges, and MOLLOY, ¹ District Judge.

MOLLOY, District Judge:

Fabian Jose Jimenez-Medina was sentenced to 55 months imprisonment following his plea of guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). The sole issue on appeal is whether reasonable suspicion existed for the investigatory stop that led to discovery of the illegal drugs. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we REVERSE.

Discussion

Jimenez-Medina was driving a Chevrolet pickup truck with Arizona plates west on Interstate 10 one hundred thirty miles from the Mexican border at approximately 11:15 p.m. on May 8, 1996. He was observed by Border Patrol Agent Robert Cole. Agent Cole first noticed the pickup because it was traveling approximately 45-50 mph in an area posted with a 75 mph speed limit. Based on his eleven years of experience as a border patrol agent, eight of them patrolling in the area, Cole knew Interstate 10 was used as a route for alien smuggling. He also testified that open-bed pickups are often used to smuggle aliens across the border.

Agent Cole began to follow the pickup in his marked sedan and performed a registration check. While waiting for this information, he observed the pickup weave within its lane, leading the agent to believe that the driver was preoccupied with the agent's presence. No traffic laws were broken.

The registration check showed that the pickup was registered to Mr. Jimenez of Agua Prieta, Sonora, Mexico, where there had been a recent increase in alien smuggling. This information led Agent Cole to conclude the pickup had "recent border access." A border patrol shift change takes place near 10:00 p.m., the approximate time Agent Cole guessed the pickup would have passed through Tucson if it had been continuously traveling on Interstate 10 at the observed speed. Agent Cole believed it was not uncommon for alien smugglers to pass through Tucson during shift changes in order to avoid detection.

The pickup had tinted windows, preventing the ability to see how many people were in the truck. Based upon the facts as interpreted by Agent Cole, he activated his lights and pulled the pickup over. Up to the point of the stop, Agent Cole had observed no illegal activity and knew in fact from physical observation of the open back that there were no persons in the back of the pickup.

A. Standard of Review

Whether reasonable suspicion existed for an investigatory stop is a mixed question of law and fact reviewed de novo. United States v. Garcia-Camacho, 53 F.3d 244, 245 (9th Cir.1995).

B. Reasonable Suspicion

The Fourth Amendment's prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992), citing U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). An officer may not detain a motorist without a showing of reasonable suspicion, which is "a particularized and objective basis for suspecting the particular person stopped of criminal activity." U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

In determining whether reasonable suspicion exists, the underlying facts are considered collectively and in light of the agent's experience in detecting alien smuggling operations. United States v. Franco-Munoz, 952 F.2d 1055, 1058 (9th Cir.1991). Reasonable suspicion cannot be based on "broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person being stopped." United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir.1994). It must be based on facts and not the "mere subjective impressions of a particular officer." United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989). While facts are to be interpreted in light of an officer's experience, "experience may not be used to give officers unbridled discretion in making a stop." Id., citing Nicacio v. United States I.N.S., 797 F.2d 700, 705 (9th Cir.1985).

C. Analysis of the Factors Leading to the Stop

The dispositive factors giving rise to the officer's reasonable suspicion were a pickup having Arizona plates, registered to a Mexican national from an area where there had recently been an increase in smuggling. The government argues this information reasonably gave rise to Agent Cole's inference that the pickup had "recent border access." The logic of this syllogism does not work.

It is fair to say that a pickup having Arizona plates was seen by Agent Cole. It is also fair to say Agent Cole determined the pickup was legally registered to a Mexican national. No doubt the pickup crossed the border. Likewise, it is fair to say that the home place of the registered owner was known to have experienced an increase in smuggling. Nonetheless, it is a quantum leap of logic to conclude that the pickup had "recent border access." There are no facts to substantiate this conclusion. Nothing in the record suggests a reasonable basis from which Agent Cole could draw the inference that is the linchpin of the government's argument. If this inference is gone, there is no reasonable basis from which Agent Cole could have inferred a reasonable suspicion about illegal conduct.

Agent Cole's decision to stop Mr. Jimenez-Medina's truck was arguably based on six factors: the type of vehicle, the slow speed of the vehicle, the driver's preoccupation, the vehicle registration, Interstate 10's reputation as a corridor for alien smuggling, and the time of evening. One need only consider these elements in the factual context of this court's precedent to arrive at the unavoidable conclusion that the cases do not support the government's position.

For instance, a driver's preoccupation with a police vehicle following him is a "quite natural reaction" and was held to be insufficient to justify an investigatory stop. United States v. Robert L., 874 F.2d 701, 703 (9th Cir.1989). The slow speed of the vehicle, the driver's preoccupation, and the driver's residence in a neighborhood under investigation for narcotics activity did not support a finding of "reasonable suspicion." Hernandez-Alvarado, 891 F.2d at 1418. The type of vehicle, the driver's preoccupation, swerving within the lane of traffic, and the highway reputation for alien smuggling could not provide the legal foundation for "reasonable suspicion" in yet another case. Rodriguez, 976 F.2d at 596. The stop in Rodriguez was no good even with the additional fact that the car appeared heavily loaded. Id. The same holding prevailed in Garcia-Camacho. There this Court determined once again that the type of vehicle, the driver's preoccupation and the highway's reputation as a route for smuggling were inadequate to give rise to "reasonable suspicion" that would have allowed a proper stop. Garcia-Camacho, 53 F.3d at 249. This court also frowned on speed of the vehicle as a basis for reasonable suspicion in Garcia-Camacho, pointing out that the government has argued both increases and decreases in speed constitute "suspicious" conduct, creating a "heads I win, tails you lose" trap for drivers who do not maintain constant speed. Id., 53 F.3d at 247.

The law of this circuit teaches that the presence of such facts as driver preoccupation, slow speed, movement within one's own lane of traffic, and even coming from the wrong neighborhood do not give rise to legally sufficient "reasonable suspicion."

While it is true that some of the same factors present in this case have supported findings of reasonable suspicion in other cases, there are factual distinctions that make those cases inapplicable as authority here. For instance, the type of vehicle, the driver's preoccupation, and the reputation of the highway were held to support a finding of reasonable suspicion in two cases, Franco-Munoz, 952 F.2d 1055, and Rodriguez-Sanchez, 23 F.3d 1488. But, in both cases other facts leading to...