US v. Montero-Camargo

• Citation: 177 F.3d 1113
• Decision Date: 13 May 1999
• Docket Number: No. 97-50643,97-50645.,97-50643
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. German Espinoza MONTERO-CAMARGO, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Lorenzo Sanchez-Guillen, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

177 F.3d 1113

UNITED STATES of America, Plaintiff-Appellee, v. German Espinoza MONTERO-CAMARGO, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Lorenzo Sanchez-Guillen, Defendant-Appellant.

Nos. 97-50643, 97-50645.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 1998.

Decided May 13, 1999.

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Harold Murray, Oden, Greene, Murray & Thompson, San Diego, California, for appellant Montero-Camargo.

Steven F. Hubachek, Federal Defenders of San Diego, Inc., San Diego, California, for appellant Sanchez-Guillen.

Sangeeta G. Patel, Special Assistant U.S. Attorney, San Diego, California, for the appellee.

Before: KOZINSKI and O'SCANNLAIN, Circuit Judges, and DAMRELL,^* District Judge.

Opinion by Judge DAMRELL; Dissent by Judge KOZINSKI.

DAMRELL, District Judge:

We must decide various issues arising from appellants' convictions and one appellant's sentence for federal crimes arising out of a traffic stop near a border patrol checkpoint.

I

On the afternoon of October 15, 1996, border patrol agents stationed at the Northbound Highway 86 checkpoint in El Centro, California received a tip from a passing motorist that two northbound vehicles with Mexicali, Mexico license plates had just turned around south of the check-point. Border Patrol Agents Brian Johnson and Carl Fisher immediately proceeded south on Highway 86 in separate, marked vehicles. About one minute later and one mile south of the checkpoint, the agents observed a blue Chevrolet Blazer and a red Nissan sedan with Mexicali plates pull off the shoulder and onto the highway and proceed southbound. Other than a semi tractor-trailer, the agents had not observed any vehicles traveling southbound on the highway for at least ten minutes prior to receiving the tip. The area where the agents observed the vehicles pulling onto the highway is near large signs indicating that the checkpoint is open. According to the agents, the area is routinely used by people to turn around in order to avoid inspection and is a known spot for dropping off and picking up aliens and drugs. Agent Johnson could not recall stopping a vehicle following a similar turn around "where we didn't have a violation of some sort," and, of the numerous vehicles stopped by Agent Fisher following similar turn arounds, all but one involved "illegal aliens inside the vehicle or narcotics violations."

After observing the vehicles pulling onto the highway, Agent Johnson pulled behind the Blazer and observed that both the driver and the passenger appeared to be Hispanic. After the driver and the passenger saw Agent Johnson pull up behind their vehicle, the passenger picked up a newspaper and began reading, an act which Agent Johnson found odd under the circumstances. Agent Johnson stopped the Blazer, identified himself as a border patrol agent and inquired as to the occupants' citizenship. The Blazer was driven by appellant Lorenzo Sanchez-Guillen. Sanchez-Guillen and his passenger presented Agent Johnson with I-586 (border crossing) cards which allow Mexican citizens to travel up to 25 miles inside the United States for no longer than 72 hours. Agent Johnson stopped the Blazer approximately 50 miles from the border. Johnson arrested Sanchez-Guillen and his passenger and instructed them to proceed northbound to the Highway 86 checkpoint for processing as he followed behind them.

While Agent Johnson stopped the Blazer, Agent Fisher accelerated to catch up to the Nissan. Once he caught up to the Nissan, he could clearly see that the driver was Hispanic. After following the vehicle for about four miles, Agent Fisher pulled it over. The Nissan was driven by appellant German Espinoza Montero-Camargo. When Agent Johnson returned to the checkpoint with Sanchez-Guillen and his passenger, he was informed that there was a possibility that the Nissan contained contraband. Agent Johnson instructed Sanchez-Guillen and his passenger to remain at the checkpoint while he went to assist Agent Fisher. The agents searched the trunk of the Nissan and found two large bags of marijuana.

When he returned to the checkpoint, Agent Johnson searched the Blazer and found a loaded .32 caliber pistol in the glove compartment. After being informed of the pistol, Agent Fisher searched the occupants and found an ammunition clip that fit the pistol in the passenger's purse.

Appellants were charged with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1) and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Appellant Sanchez-Guillen was also charged with being an illegal alien in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2) and aiding and abetting the carrying of a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1) and (2).

Montero-Camargo entered a conditional guilty plea to conspiracy to possess and possession of marijuana with the intent to distribute. A jury convicted Sanchez-Guillen of conspiracy to possess and possession of marijuana with the intent to distribute and being an illegal alien in possession of ammunition.

II

Appellants first argue that the district court's denial of their respective motions to suppress should be reversed because the agents did not have reasonable suspicion to stop the vehicles they were driving.

Whether reasonable suspicion existed to justify an investigatory stop is a legal conclusion subject to de novo review. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). A district court's denial of a motion to suppress evidence is reviewed de novo, and its factual findings are reviewed for clear error. See United States v. Kemmish, 120 F.3d 937, 939 (9th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1087, 140 L.Ed.2d 144 (1998).

The Fourth Amendment prohibits an officer from stopping a vehicle without a reasonable or founded suspicion of criminal conduct at the time of the stop. United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992). Reasonable suspicion exists when an officer is aware of specific, articulable facts, which, together with objective and reasonable inferences, form a basis for suspecting that the particular person to be detained has committed or is about to commit a crime. United States v. Salinas, 940 F.2d 392, 394 (9th Cir.1991). The facts are to be interpreted in light of a trained officer's experience, and the whole picture must be taken into account. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

The Supreme Court has set forth a non-exclusive list of factors upon which border patrol agents may rely in finding reasonable suspicion: "(1) characteristics of the area; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the driver, including `obvious attempts to evade officers'; (6) appearance or behavior of the passengers; (7) model and appearance of the vehicle; and, (8) officer experience." United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir.1997) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).

Appellants are correct that avoidance of a checkpoint, without more, is insufficient to support a finding of reasonable suspicion. See United States v. Ogilvie, 527 F.2d 330, 331-332 (9th Cir. 1975). Apparent attempts to avoid checkpoints combined with other factors, however, have generally been found to constitute reasonable suspicion. See Garcia-Barron, 116 F.3d at 1307-08 (reasonable suspicion founded upon appellant's attempt to avoid checkpoint, use of a rental car, time of day, route taken, failure to turn off at either of the most common destinations for the limited traffic that legitimately traveled the road, and fact that the area was known for alien smuggling); see also United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1493 (9th Cir.1994) (factors supporting reasonable suspicion included high volume of alien smugglers on highway where stop occurred and driver and passenger were Hispanic); United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir.1984) (factors supporting reasonable suspicion included area in which vehicle was traveling was notorious route for circumventing checkpoint, vehicles traveling in close proximity to one another, and tandem u-turn when patrol vehicle approached). Here, the record contains numerous "other factors" in addition to the apparent avoidance of the checkpoint, including: the agents' observations, such as tandem driving and the ethnicity of the occupants; the behavior of Sanchez-Guillen's passenger; the agents' prior experience during stops following similar turn arounds; and the characteristics of the area, including its use as a pickup and drop-off point for aliens and drugs. Such other factors, when combined with the apparent avoidance of the checkpoint, provide a well founded basis for the stop. See Garcia-Barron 116 F.3d at 1307-08.

III

Sanchez-Guillen next contends that the district court's denial of his motion to suppress should be reversed because the agent did not have probable cause to search the Blazer. The validity of a warrantless search is reviewed de novo. United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir.), cert. denied, 519 U.S. 912, 117 S.Ct. 276, 136 L.Ed.2d 199 (1996). Underlying factual findings are reviewed for clear error. United States v. Hernandez, 27 F.3d 1403, 1406 (9th Cir.1994), cert. denied, 513 U.S. 1171, 115 S.Ct. 1147, 130 L.Ed.2d 1106 (1995).

Probable cause exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." O...