U.S. v. Rodriguez

• Decision Date: 05 October 1992
• Docket Number: No. 91-50243,91-50243
• Citation: 976 F.2d 592
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramiro RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 592

976 F.2d 592

61 USLW 2282

UNITED STATES of America, Plaintiff-Appellee, v. Ramiro RODRIGUEZ, Defendant-Appellant.

No. 91-50243.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 1992.

Decided Oct. 5, 1992.

Jeanne G. Knight, Asst. Federal Public Defender, San Diego, Cal., for defendant-appellant.

George Aguilar, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before: HUG, PREGERSON, and POOLE, Circuit Judges.

POOLE, Circuit Judge:

INTRODUCTION

Appellant Ramiro Rodriguez, convicted under 21 U.S.C. § 841(a)(1) of possessing a controlled substance with intent to distribute (168 pounds of marijuana), appeals the denial of his motion to suppress evidence seized after an investigatory stop by U.S. Border Patrol Agents. Rodriguez claims that the agents did not have reasonable suspicion to stop his car, and thus conducted an illegal search in violation of the fourth amendment. We agree and reverse the district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On August 4, 1990, at approximately 7:00 p.m., Rodriguez traveled alone heading west on Interstate 8 in Southern California driving a 1976 Ford Ranchero. Two Border Patrol Agents sat in their marked car parked 20 feet to the side of the highway near the In-Ko-Pah exit. The agents saw Rodriguez approach from a quarter of a mile away. They noted that he looked Hispanic, sat up straight, kept both hands on the wheel, and looked straight ahead. He did not "acknowledge" the agents, which they thought suspicious since, as they testified, "all the other traffic that went by--people had their feet out the window. They had their arms out the window. They were looking at us. They were acknowledging our presence. They were waiving at us, or whatever."

One of the agents testified that he had seen a picture of a vehicle similar to Rodriguez's that had allegedly been involved in another smuggling case at some unknown place and time. The agents also testified that, in their experience, Ford Rancheros have a space behind the seat where aliens can be concealed.

The agents followed Rodriguez. They testified that his car responded sluggishly when it went over a bump as if heavily loaded, rather than with a "crisp, light movement" which they testified was typical for this type of vehicle. They further testified that, while being followed, Rodriguez looked in his rear view mirror and swerved slightly within his lane. Based on these observations, the agents activated their emergency lights to stop Rodriguez. He pulled immediately to the shoulder. A subsequent search of Rodriguez's vehicle resulted in the seizure of 168 pounds of marijuana.

Rodriguez was indicted for violation of Title 21 U.S.C. § 841(a)(1), possession of marijuana with intent to distribute. When the District Court denied his motion to suppress the evidence as being the product of an illegal stop, he entered a conditional plea of guilty and filed this appeal. As a mixed question of law and fact, we review de novo whether reasonable suspicion existed for this investigatory stop. U.S. v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989).

DISCUSSION

The fourth amendment's prohibition of unreasonable searches and seizures extends to seizures of the person, including the brief investigatory stop of a vehicle. U.S. v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607 (1975). Thus, an officer may not detain a motorist without "a particularized and objective basis for suspecting the particular person stopped of criminal activity." U.S. v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 694-96, 66 L.Ed.2d 621 (1981). 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." Hernandez-Alvarado, 891 F.2d at 1416, citing U.S. v. Cortez, 449 U.S. at 416-418, 101 S.Ct. at 694-95.

"Reasonable suspicion" is less than probable cause, U.S. v. Brignoni-Ponce, 422 U.S. at 880, 95 S.Ct. at 2579-80, and "the facts used to establish 'reasonable suspicion' need not be inconsistent with innocence." U.S. v. Franco-Munoz, 952 F.2d 1055, 1057 (9th Cir.1991). However, a finding of reasonable suspicion must be based upon "the degree of suspicion that attaches to particular types of non-criminal acts." U.S. v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1 (1989).

In the case before us, to determine whether the agents' suspicion was reasonable, we must ascertain under the above guidelines whether the factors they cite as giving rise to the stop describe behavior that should excite the suspicion of a trained border patrol agent that criminal activity is afoot. While the circumstances are to be considered from the perspective of a trained and experienced agent, Cortez, 449 U.S. at 418, 101 S.Ct. at 695, mere subjective impressions are never enough and hunch alone cannot be relied upon to transform innocent driving behavior into suspicious activity. Nicacio v. I.N.S., 797 F.2d 700, 705 (9th Cir.1985). Finally, we must be watchful for mere rote citations of factors which were held, in some past situations, to have generated reasonable suspicion, leading us to defer to the supervening wisdom of a case not now before us.

The record indicates that the agents relied upon these factors in deciding to stop Rodriguez:

--Interstate 8 is a "notorious route for alien smugglers;"

--Rodriguez, who was alone in his car, did not acknowledge the agents as he passed their marked car while all the other passing traffic honked, waived, or in some way acknowledged their presence --Rodriguez's car was a kind Agents thought could be used for alien smuggling;

--While being followed, Rodriguez looked at the Agents several times in his rear view mirror and swerved slightly within his lane;

--Although the Agents saw only Mr. Rodriguez in the car, it appeared to be "heavily loaded" and "kind of floated" over bumps in the road;

--Rodriguez is a Hispanic male.

We note, initially, that this is not the first time Border Patrol agents have tendered a similar profile to this court as evidence of the existence of reasonable suspicion. In fact, this profile is so familiar, down to the very verbiage chosen to describe the suspect, that an inquiring mind may wonder about the recurrence of such fortunate parallelism in the experiences of the arresting agents. Consider, for example, that the Border Patrol agents in U.S. v. Franco-Munoz gave this picture:

--The area where the car was stopped was frequently used to transport illegal aliens, described by Agent Vandekop as "notorious for alien smuggling";

--appellant, who was alone in the car, did not acknowledge the agents' presence as he passed their parked patrol car; [The agents were parked in a marked Border Patrol car beside the road. One of the agents testified that drivers generally acknowledge the patrolmen's presence in this type situation.]

--appellant's car had a rental agency sticker on it [rental cars apparently are...