U.S. v. Torres-Urena

• Citation: 513 F.2d 540
• Decision Date: 20 March 1975
• Docket Number: TORRES-UREN,No. 74-2949,D,74-2949
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abelefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 540

513 F.2d 540

UNITED STATES of America, Plaintiff-Appellee, v. Abel TORRES-URENA, Defendant-Appellant.

No. 74-2949.

United States Court of Appeals, Ninth Circuit.

March 20, 1975.

Frank T. Vecchione (argued), San Diego, Cal., for defendant-appellant.

William A. Shaw, Asst. U. S. Atty. (argued), for plaintiff-appellee.

Before BROWNING and WRIGHT, Circuit Judges, and ZIRPOLI, ^* District Judge.

OPINION

PER CURIAM:

Appellant was convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. section 841(a)(1). His sole argument on appeal is that there was no basis for a founded suspicion to justify the stop that led to his arrest. We reverse.

At approximately 6:20 on the morning of May 1, 1974, United States Customs Patrol Officer Leonard Dixon, with his partner, was patrolling Monument Road, an east-west artery in San Ysidro, California. The sun was up, the day was already bright, and Dixon noticed a pickup truck parked approximately 50 yards up a private driveway south of the road. A man was loading cardboard boxes into the pickup, but Dixon could not see him clearly enough at that distance to describe him and could not see what was inside the boxes. He had been informed that a female school teacher lived in the residence at the end of the driveway, but he had never met her, was unaware if she was married, and was not familiar with all the vehicles she used. He did know, however, that there were no other structures between this residence and the border, which was one-quarter mile away. When the pickup emerged from the driveway, Dixon stopped it and found marijuana in plain view in the luggage area and arrested appellant, the driver. ¹

Appellant moved to suppress the marijuana, and the hearing on the motion produced the following facts in addition to the above: Dixon had been assigned to the Monument Road area for six months, and had patrolled it daily during that time. To his best recollection, there were 15 to 20 residences along Monument Road. Some of them were truck farms, so it was not unusual to see pickup trucks on Monument Road. While there are no farms south of the road, where the school teacher's residence is located, there apparently are farms across the road from that residence. During his six months patrolling the area, Dixon had made between 500 and 1,000 arrests of aliens illegally in the country, but had made only three or four arrests for narcotics violations, although he testified he had seen "sea bags or boxes being drug from the brush out to the driveway," and it appears he believed these to contain contraband. The trial court denied the motion to suppress.

The issue before us is whether, on the basis of the foregoing, Dixon had a founded suspicion that appellant was engaged in criminal conduct. We are not unmindful of Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), but look to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), for the proper standards. United States v. Ward, 488 F.2d 162, 169 (9th Cir. 1973) (en banc); see Weisgell, Stop, Search and Seize: The Emerging Doctrine of Founded Suspicion, 9 U.S.F.L.Rev. 219 (1974). Those cases teach that the central concern of the court is the reasonableness of the officer's conduct. 392 U.S. at 19, 20, 88 S.Ct. 1868. The standard for review is an objective one, id. at 22, 88 S.Ct. 1868, and the court must evaluate each case on its unique facts, id., 392 U.S. at 59, 88 S.Ct. 1868, to determine whether the officer can "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 21, 88 S.Ct. 1868, at 1880. In evaluating the inferences that may rationally be drawn from the facts at the officer's disposal, the court takes heed of Mr. Justice Harlan's admonition in his concurring opinion in Sibron, supra, that "(t)here must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity, completed, current, or intended." 392 U.S. at 73, 88 S.Ct. at 1907. It is not enough that the officer has a hunch that criminal activity may be afoot. Terry, supra, 392 U.S. at 22, 88 S.Ct. 1868.

Applying this standard to the facts presented at the suppression hearing, we are unable to discern any facts that would make the conduct observed by the officers anything but innocuous. See United States v. Mallides, 473 F.2d 859, 861 (9th Cir. 1973). It was not so early in the morning that appellant's presence was inherently suspicious for that reason the sun was up and the day was already, in Dixon's words, "pretty bright." Pickup trucks are common in the area since there is a good deal of truck farming around Monument Road; while he was unfamiliar with this truck, Dixon was not familiar with all the vehicles used by the school teacher who lived in this residence. Appellant's presence was not inherently suspicious although Dixon knew that a female lived in that residence, he did not know if she was married and had not, indeed, ever seen her. There was nothing inherently suspicious about appellant's box-loading. Dixon could not tell what was inside the boxes, and had very limited experience with narcotics arrests in the area, his main concern being apprehension of aliens illegally in the country, and it does not appear this was a notorious smuggling area. None of these facts, singly or together, provide any reasonable basis for inferring that appellant was smuggling marijuana, or otherwise violating the law. Had the stop taken place anywhere distant from the border, there would be no question but that it was invalid. The sole support for the government's position, therefore, is that this residence is located one-quarter mile from the border. We are unwilling to hold that persons found or residing near the border are entitled only to diluted protections under the Fourth Amendment, and therefore reject the government's argument that proximity to the border converts these otherwise innocuous activities into conduct suspicious enough to justify the stop here.

United States v. Jaime-Barrios, 494 F.2d 455 (9th Cir. 1974), upon which the trial court relied, is distinguishable. The officer there had encountered appellant driving an ordinary automobile at a high rate of speed over a rough, unpaved, remote road near the border. He lived in one of the four residences in the area, and knew all the other residents and the cars they drove. He had not seen appellant's car at any of the residences in the area during his patrols throughout the night, and found it odd that a person would be driving a vehicle without four-wheel drive in that terrain. He had apprehended persons smuggling aliens or marijuana over this road on many occasions. Given his unique familiarity with the occupants of the area, his experience in past apprehensions, and appellant's high rate of speed in a vehicle without four-wheel drive, the officer reasonably suspected that appellant was engaged in some smuggling activity. Similarly, in the recent case of United States v. Rodriguez-Alvarado, 510 F.2d 1063 (9th Cir., 1975), the officer first saw appellant's vehicle accelerating over a bumpy road in an area near the border that has a high incidence of smuggling activity. As he followed the speeding car, the officer saw it swerve from side to side, appearing heavily loaded although there was only one visible occupant. When the vehicle reached speeds of 55 to 60 miles per hour in a residential area, the officer decided to stop it. As is apparent, in these cases the officers had indicia of criminality in addition to the proximity to the border to justify their inference that the drivers of these vehicles were smuggling. Here, Dixon had little experience with marijuana smuggling in the area, was only moderately familiar with the neighborhood, knew little of the school teacher and had no reason to believe appellant's early morning box-loading involved criminal activity of any kind. His hunch that it might because of the proximity to the border is not sufficient to provide a founded suspicion for the stop.

The judgment is reversed, and the case is remanded with directions to dismiss the indictment.

EUGENE A. WRIGHT, Circuit Judge (dissenting):

Respectfully, I dissent.

In United States v. Holland, 510 F.2d 453 (9th Cir., 1975), we again cited with approval the rule of this circuit taken from Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), where it was said:

" . . . due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing."

Id. at 415.

One-fourth of a mile from the international border at 6:20 a. m. in May 1974, customs patrol officers patrolled an area near the beach in San Ysidro, California. One officer, with three and one-half years' experience as a customs patrol officer, customs inspector and border patrol officer, the last six months of which had involved working in the very area in question almost daily, observed a truck parked part way up a private driveway to the west of the highway. The driveway led to the home of a female school teacher, who was known to own passenger cars but no trucks.

On his daily patrols through the area, the officer had observed "traffic around the area, what appeared to be sea bags or boxes being drug from the brush out to the driveway." The officer knew that there were few other residences or buildings of any kind in the immediate area where he saw the truck, and none between the driveway and the border. H...