U.S. v. Pulido-Santoyo

• Decision Date: 26 June 1978
• Docket Number: PULIDO-SANTOY,D,No. 78-1377,78-1377
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Estebanefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 352

580 F.2d 352

UNITED STATES of America, Plaintiff-Appellee, v. Esteban PULIDO-SANTOYO, Defendant-Appellant.

No. 78-1377.

United States Court of Appeals, Ninth Circuit.

June 26, 1978.

Rehearing and Rehearing En Banc Denied Aug. 15, 1978.

Barbara F. Brown, Asst. U. S. Atty. (argued), San Diego, Cal., for defendant-appellant.

Eugene G. Iredale, Federal Public Defender (argued), San Diego, Cal., for plaintiff-appellee.

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

Before BARNES and HUG, Circuit Judges, and CURTIS, District Judge ^*.

BARNES, Senior Circuit Judge:

Appellant was convicted of knowingly aiding and assisting an illegal alien to enter the country and assisting the alien to avoid apprehension in violation of 8 U.S.C. § 1325 and 18 U.S.C. §§ 2, 3.

He asserts two claims of error: (1) that the stop of the pickup truck in which he was a passenger was not based on reasonable suspicion. The truck was being driven by the illegal alien, Guillermo Blanco, and was stopped by a Border Patrol agent who had seen it pass by minutes before going in the opposite direction with appellant as the only occupant. The Border Patrol agent and a partner were apprehending a group of illegal aliens in a notorious smuggling area known as Imperial Beach, and three aliens had just fled in the direction from which the truck was returning. Though the case is complicated by the fact that the stop took place in a populated area, Ninth Circuit law makes it apparent that the facts proved were sufficient to provide a reasonable suspicion that the truck was engaged in illegal activity.

Appellant also contends (2) that there was insufficient evidence to establish that he knew Guillermo was illegally in the country. Evidence existed which showed, however, that while Blanco and Pulido were in Tijuana, for several days they made fairly elaborate arrangements by which Guillermo would call appellant after he had crossed the border, and have appellant drive Guillermo's truck across the border for him and pick him up on the United States side. This procedure, in addition to a prior conviction for smuggling aliens in the same area and under similar circumstances, was sufficient to establish Pulido's knowledge that Blanco was an illegal alien.

Appellant was sentenced for six months in prison on each of the two counts to run concurrently. Sentence was suspended and he was placed on two-year probation.

I. VALIDITY OF THE STOP

Appellant's first and strongest argument is that the Border Patrol did not have sufficient justification to stop the truck in which he was riding. The facts relevant to this issue are undisputed by the parties and based entirely on the testimony of the arresting officer, Border Patrol Agent Zevenbergen. All the events took place February 23, 1977, in Imperial Beach, California, a beach town about one and a half miles from the Mexican border.

Agent Zevenbergen and another agent received a radio message from their dispatcher about 9 p. m. informing them that a resident citizen had just reported a large group of what appeared to be illegal aliens moving northward on Imperial Beach. Zevenbergen testified that Imperial Beach is the southernmost inhabited area in the United States at that point and a notorious smuggling region because of its proximity to the border and its adjacency to the tidal region at the mouth of the Tijuana River. Zevenbergen himself had apprehended about 300 aliens in that area in the previous month.

Zevenbergen positioned himself at the intersection of First Street and Descanso, while his partner parked nearby and went directly to the beach. First Street runs parallel to the beach and dead ends one-eighth of a mile south of Descanso. The area is residential, "mostly apartments." At the end of First Street are the Boca Rio apartments, the first buildings north of the border.

Zevenbergen's partner informed him by walkie-talkie that he had apprehended a large group of illegal aliens on the beach but that at least three had escaped and were running south along the beach. About that time appellant drove down First Street past Zevenbergen in a green pickup truck. Zevenbergen said appellant drove slowly past him, looking first to the right at the group of aliens being herded away from the beach and then back to the left at Zevenbergen, who was able to get a good look at his face.

"Several minutes" later, as the agents were loading those apprehended into Border Patrol vehicles, the green pickup drove back from the area of the Boca Rio apartments. Zevenbergen could not see who was in the truck except to note that there were now two occupants. On cross-examination defense counsel elicited from Zevenbergen that, although he was familiar with the area, he did not recognize the truck, that he saw no other vehicles going north before appellant reappeared and that he had initially ascertained that appellant was Latin in appearance. Zevenbergen pursued the truck and stopped it some distance away without any further evidence of suspicious activity. Zevenbergen then determined that Guillermo Blanco, the driver and owner of the truck, was an illegal alien.

Border Patrolmen roving near the border can make an investigative stop "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." United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). ¹

Although none of these factors standing alone would be sufficient to constitute reasonable suspicion, See, e. g., United States v. Morrison, 546 F.2d 319, 320 (9th Cir. 1976); it is clear that appellant's Latin appearance, United States v. Rocha-Lopez, 527 F.2d 476, 478 (9th Cir. 1975), Cert. denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976); the fact that an officer who knew the area well did not recognize his car, Id.; the proximity to the border and the area's history of smuggling activity, United States v. Avalos-Ochoa, 557 F.2d 1299 (9th Cir. 1977); are all relevant grounds upon which the Border Patrol could properly rely. See generally United States v. Brignoni-Ponce, supra, 422 U.S. at 884-85, 95 S.Ct. 2574.

That appellant was driving quite slowly one-eighth of a mile before the street reached a dead end does not seem at all strange; nor is the Government's case aided by his quite natural reaction of looking at the group of aliens being herded in from the beach and then back at a uniformed Border Patrol agent standing alone under a street light at night. Cf. United States v. Mallides, 473 F.2d 859 (9th Cir. 1973) (mere refusal to look at agent not sufficient basis for stop).

Without more, the stop was questionable. See United States v. Martinez-Tapia, 499 F.2d 1244 (9th Cir. 1974) (car proceeding slowly on road one mile from border in sparsely populated area not sufficient basis for stop). But the arresting officer had an additional factor: the three missing aliens. Zevenbergen knew from his partner's radio call that three aliens were fleeing south on the beach, the same general direction in which appellant had driven. When the truck returned several minutes later with two occupants, Zevenbergen's suspicions were properly aroused.

Appellant rebuts by noting that the neighborhood was apparently well populated and that there was at least one set of apartments at the end of First Street from which the vehicle could have been picking up a local resident. But the latest case law is against him.

In United States v. Nunez-Villalobos, 500 F.2d 1023 (9th Cir. 1974), the Court validated a stop of a pickup truck at 2:05 a. m. in a sparsely populated, hilly area one mile from the border. In addition to the hour and the nature of the area, the only reason for the stop was that the Border Patrol agent had seen the truck first proceeding eastward toward open country and then a few minutes later returning westward in the direction of the area's only towns. Similarly in United States v. Holland, 510 F.2d 453 (9th Cir. 1975), police outside a nearly isolated house where guns and narcotics had just been seized stopped a car that had proceeded slowly past the house and returned after reaching a dead end. The Court approved the stop, primarily because there was also a fugitive warrant for one of the people living in the house.

Nunez-Villalobos, Holland, and other cases with relatively unfounded stops, United States v. Rocha-Lopez, 527 F.2d 476 (9th Cir. 1975) (notorious area, early morning hours; out-of-town car braking suddenly to ten miles per hour upon sighting Border Patrol vehicle); United States v. Roberts, 470 F.2d 858 (9th Cir. 1972), Cert. denied, 413 U.S. 920, 93 S.Ct. 3071, 37 L.Ed.2d 1042 (1973) (notorious area; car riding low with passenger slumped low in front seat), can be distinguished as occurring in sparsely populated areas. ² But in none of these cases was there any factor as strong as the officers' actual knowledge of the presence of specific illegal aliens in the immediate vicinity, some under arrest and at least three fleeing from arrest.

The case is close, but cannot be distinguished from Nunez-Villalobos or Holland, and we therefore hold the stop legal.

II. SUFFICIENCY OF THE EVIDENCE THAT PULIDO KNEW BLANCO WAS AN ALIEN

Appellant also claims that the Government failed to prove beyond a reasonable doubt that he knew Guillermo Blanco was an illegal alien.

The Government asserts that because appellant failed to make a Fed.R.Crim.P. 29(a) motion for acquittal at the close of the trial that he has waived his right to appellate review of the sufficiency of the evidence against him. Rule 29 is clearly intended to apply to jury trials, See,...