*3 BARKETT, Before PRYOR and FARRIS,* Judges. Circuit PRYOR, Judge: Circuit appeal presents This the question veteran patrol whether a border agent, while on in a marked vehicle in a corridor known for human Florida, reasonably suspected South that a sport-utility-vehicle with California license plates containing six adult males of appar- ently Hispanic descent was transporting illegal aliens when the changed driver speeds erratically on a slippery road and appeared the passengers nervous and re- acknowledge agent’s fused to attempts to gain their attention. The district court agent ruled that the lacked reasonable sus- picion which was driven Bautista-Silva, Juan and the district court granted Bautista-Silva’s motion to suppress physical all statements and evi- dence obtained as a stop. result of the We conclude that the agent’s decision to stop the vehicle was based on specific and artic- that, ulable cumulatively viewed in the light agent’s of the experi- extensive ence, created reasonable of ille- gal activity. We reverse and remand for proceedings. further
I. BACKGROUND background Our discussion of the of this prosecution parts. is divided in two We leading the facts discuss * Farris, Honorable designation. Jerome United States Cir- Circuit, Judge cuit sitting by- for the Ninth passenger the front of the then driver and We discuss Bautista-Silva’s vehicle. males, all suppress Hispanic adult motion to vehicle were Bautista-Silva’s obtained physical evidence also adult other four statements stop. suspected result males. contained aliens and de- Stop Leading to the A. Facts pursue cided to the Suburban investi- Vehicle Bautista-Silva’s gate. Agent Richard Cole testified Senior high- After drove onto the Agent Cole Border Patrol joined the United States its way, speed. increased the Suburban 1998, Agent From 1992 in 1992. *4 attempted up” to “catch with the As Arizona, Nogales, where was stationed Suburban, “it Agent Cole observed that many aspects with he “was involved it fast traveling very because nationality immigration law.” enforcing the left lane.” passing a lot vehicles Orlando, 1998, to transferred Agent Cole or Agent It took Cole about “two three Florida, with where he continued assist Suburban, catch with up minutes” to the Agent Cole enforcing immigration law. “in during which time he drove excess of smug- traffic for human has “monitored Agent 100 miles an hour.” When Cole his career throughout gling operations” Suburban, the caught up Agent investigative countless performed and has positioned the Cole’s vehicle was behind suspicion for on “reasonable stops based traveling and both Suburban vehicles were illegal smuggling.” or alien aliens an “about 90 miles hour.” Agent and On March Cole alongside” Agent “pulled up When Cole monitoring Sergio Perez were Agent look,” get “to a better the the Suburban 95 in Bre- traffic on Interstate southbound “immediately very down slowed Florida, County, they done vard had to main- quickly.” Agent Cole decelerated years, three based previous the throughout Suburban, tain his the position beside the Pa- intelligence provided by Border of his opened passenger window vehi- illegal aliens used interstate trol cle, ’to get and tried attention of the The to travel to South Florida. highway passen- passengers of Suburban. agents Agent were in uniformed nervous, gers appeared did not acknowl- Agent marked and official “just edge and continued to agents, was in the driver’s seat vehicle. Agent straight look ahead.” Cole then in a parked stop at a rest vehicle was stopped the Suburban. Bautista-Silva wide, “very open area” that allowed they all five admitted observe, by, be observed agents Mexico, and the illegal were aliens southbound traffic. agents custody. all six men into took a.m., Around 11:00 Cole saw Suburban that contained silver Chevrolet To Suppress B. Bautista-Silva’s Motion As passengers. and five Bautista-Silva Physical Evidence AU Statements agents’ loca- approached the Suburban Stop as a Result Obtained traffic,” tion, “driving along with it was charged with know- Bautista-Silva was less truck “pickup “more or behind” five aliens within ingly transporting objects a flat trailer with some pulling private financial States for United it agents it.” As the Suburban 1324(a)(l)(A)(ii), §§ gain. 8 U.S.C. get alongside” the suddenly up “seemed to (a)(1)(B)®. moved to dis- Bautista-Silva that the Sub- truck. Cole observed or, alternative, in the plates, the miss indictment urban had California license States, suppress sys- but he did check physical all statements ed stop, obtained as a result of the tem for information evidence about Bautista-Silva’s rea- ground on the lacked acknowledged vehicle. his vehicle. The stop sonable several the factors on which he based government responded that the stop his decision to Bautista-Silva’s vehicle the vehicle susceptible explanation: of innocent experience, specific on their and ar- based portion was not unusual on that of I- facts, ticulable and rational inferences vehicles, large see Cali- vehicles with from those drawn the vehicle plates, fornia license or vehicles with mul- contained aliens. tiple Hispanic passengers; unusual, in morning, people to “see evidentiary
The district held going many and from work with males hearing, which Cole testified car”; “heavily in the 1-95 is a behalf of government, Bautista- traveled Cole also testified road[.]” presented testimony of a Silva defense nothing about the Suburban itself investigator. Agent that his Cole testified appear suspicious made the vehicle or decision Bautista-Silva’s vehicle *5 overloaded. that, was based on factors in his several experience, suggested the vehicle con- The agents district court ruled the (1) illegal tained aliens: the Suburban was lacked stop to Bautis- large kind by the of vehicle often used ta-Silva’s vehicle. The court cred- district (2) aliens; smugglers transport to Agent testimony ited Cole’s about the driver all passengers five events but concluded fac- that most of the males; (8) Hispanic adult the Suburban Agent on tors which deci- Cole based his California, registered stag- was a known stop sion to Bautista-Silva’s vehicle were (4) ing area for smuggling; human commonplace “too to support [reasonable 1-95, Suburban traveling was south on suspicion] or to given meaningful be by known smugglers route to be used to weight ‘totality of the circumstances’ transport Florida; to aliens South as it analysis.” court, According to the district vehicle, Agent parked patrol Cole’s it was of “some relevance” that Bautista- appeared Suburban to hide an- behind Silva’s vehicle was large, traveling was in an attempt other vehicle to avoid detec- south on had California license tion; erratically Bautista-Silva drove plates, and passengers ap- contained on a slippery passing Agent road after peared Hispanic, to but be the district Cole, when ap- accelerated in an court found that those facts were insuffi- parent attempt to evade the to justify stop. cient The court district decelerated immediately after also found proper “would not be to up in caught apparent an let attempt assign weight” much type to the of vehicle agents pass; of passengers driving Bautista-Silva was because nervous, appeared the Suburban stared hardly “agents are unanimous in be- their ahead, straight refused acknowl- SUVs, lief vehicles such as trucks and edge attempt gain their vans the vehicles of choice those attention. engaged The of aliens.” cross-examination, against weighed
On court Agent Cole testi- the factors relied Treasury proximity fied that he familiar Cole the lack with the of of the System, border, Enforcement a Suburban Communications to the Mexican nor- computer Suburban, of appearance database information about mal of the vehicles that of cross the border Unit- Cole’s failure to describe the of Mexican,” interlocutory appeal by This “distinctively stop. the Suburban of followed. government were not aware that “the suspect particu- this any other reasons tip that vehicle, anonymous such as
lar II. REVIEW STANDARDS OF report from aliens or a transporting it was suppress A motion to is mixed recently been agents that other law and We review the question of fact. known for bor- in an area observed findings court for factual of district crossings.” der law application clear error and the concluded that “[t]he The court district Mer those facts de novo. United States v. primarily rests legality of (11th Cir.2008) cer, 541 F.3d 1073-74 behavior two factors: curiam). pre Because Bautista-Silva (per The occupants.” its behavior in the we construe the vailed district concluded that neither court district most facts in the favorable him. could create a reasonable factors these Id. at 1074. Whether there was reason The illegal activity. suspicion of justify ques is a able driving “the behavior opined that review de novo. tion law we Hicks be- remarkable” the Suburban Moore, Cir. “was not certain that cause 2005). avoid his no- attempting approached him[.]” as it first tice III. DISCUSSION that Bautista- opined also district court argues government the district *6 and deceleration acceleration Silva’s agents court erred when ruled way from sufficiently different “not suspicion stop lacked reasonable Bautis- routinely on Interstate 95 drive others Agent ta-Silva’s vehicle because Cole’s de- According suspicion.” warrant stop cision to the vehicle based suspicion that Bautis- Cole’s Agent that, facts viewed specific and articulable his after ta-Silva accelerated cumulatively Agent in of vehicle to evade parked experience, created a rea- extensive Cole’s by the fact that there was undermined suspicion that the vehicle con- sonable attempted that Bautista-Silva no evidence ar- illegal government aliens. The tained availability highway, despite the to exit the because, court erred gues that the district off-ramp an after Bautista-Silva of acknowledged its duty although caught Agent and before Agent Cole of the circum- totality to consider the to him. up stances, “analyzed the facts in the court behav- court ruled that the isolation, explana- innocent strained to find of the of ior facts, failed to view tions for those determining in could not be considered experi- of through eyes an those suspi- reasonable whether agree. agent.” enced Border Patrol We “actions stop the vehicle because cion The record establishes straight ahead staring of a defendant reasonably that Bautista-Silva’s suspected way in any weigh ‘cannot the balance illegal aliens. vehicle contained ” whatsoever!)]’ district court denied an officer’s observations in- “[W]hen motion to dismiss the Bautista-Silva’s par a reasonably suspect him mo- lead granted Bautista-Silva’s dictment but who are may contain aliens physi- ticular vehicle suppress all statements and tion country, may stop the in the illegally result of the obtained cal evidence 1272 briefly investigate provided the circum a nonexhaustive list of of
car
some
provoke suspicion.”
may
stances
United
the factors that “[o]fficers
consider”:
873,
(1)
Brignoni-Ponce,
422 U.S.
States
“the
characteristics
area
881,
2574, 2580,
(2)
95
The district court proper assign “it not be would ed The district court confused issue weight” the kind vehicle much driving by giving erratic Bautista-Silva’s driving because Bautista-Silva herring weight to a red about whether unanimous in their be “agents hardly are highway left the the first Bautista-Silva SUVs, trucks and that vehicles such as lief Although the district court available exit. of choice for those vehicles vans conduct determined Bautista-Silva’s ap This of aliens.” engaged passed patrol he “the after vehicle was draw on not allow “to proach does observation,” significant agents’ most train experience specialized their own remarkably opined court that “the district from deduc to make inferences ing acceleration and deceleration— Suburban’s information the cumulative tions about by unaccompanied any attempt to exit the might elude an to them that well available obviously take highway or other evasive 273, 122 Id. at S.Ct. at person.” untrained sufficiently not action—was different omitted). (internal marks quotation 750-51 way routinely Inter- others drive on inquiry concerns objective Our suspicion.” Agent 95 to warrant state testimony, experiences based Cole’s sudden Cole testified that Bautista-Silva’s of other purported experiences per 90 miles approximately acceleration testify did not about the kinds agents who suspi- after hour smuggle illegal vehicles used to aliens. because, experience, in his when cious also when erred they smugglers alien realize have been driving be opined that Bautista-Silva’s Patrol, they often noticed the Border havior, passed Agent Cole’s both as disagree attempt pursuit. to evade We afterwards, not cre vehicle and did conjecture of the district court activi ate a reasonable failure to avail him- that Bautista-Silva’s ty. The court stated Bautista-Silva’s high- off the self of the available exit patrol vehicle as he conduct way after he accelerated renders “[Agent] remarkable” because “was not er- about Bautista-Silva’s that the Sub himself was certain *8 driving ratic unreasonable. Bautista-Sil- his notice attempting urban was avoid on an to 90 miles an hour va’s acceleration him; most he approached at as first of highway in advance a marked interstate been, words, thought might have in his if for suspicious, car was no other pickup truck.” The ‘drifting’ behind the reason, illegal. Agent because it was because district court erred reasonable abrupt that Bautista-Silva’s also testified cer suspicion require does not absolute agents caught up after the deceleration 751; 274, 122 at tainty. id. at S.Ct. See because, suspicious his vehicle Powell, 222 at 917. movement This F.3d will experience, smugglers Cole’s suspicious a and rele of the Suburban was decelerate to allow Border Patrol often argues that we factor. The dissent vant also pass. Agent Cole testified testimo erroneously construe rapid Bautista-Silva’s acceleration of that ny about Bautista-Silva’s concerned him because government, in favor of the and deceleration patrol vehicle slippery[,]” acknowledge sighted it had road been law enforcement “[t]he “raining day.” off and on that might officer well be unremarkable in one quite instance ... while unusual anoth- disagree We with the district court that “ er,” and a detaining officer is “entitled to win, you I there is a ‘heads tails lose’ make an of assessment the situation basing suspicion’ flavor to ‘reasonable specialized of his and famil- training driving behavior].” [Bautista-Silva’s iarity with the customs of the area’s in- reasonably suspected Id. at habitants.” attempted escape by Bautista-Silva must then, 752. We consider the escape behavior accelerating when vehicle, unsuccessful, passengers attempt proved decelerated and that behavior, pass. along to allow the totality Bautista- with the driving slip- Silva’s erratic behavior circumstances existed when the pery supported Agent road Cole’s reason- agents stopped Bautista-Silva’s able the vehicle contained created a reasonable illegal aliens. vehicle contained illegal aliens.
The district court also cited United IV. CONCLUSION Escamilla, States (5th Cir.1977), proposition for the granted We REVERSE the order that “actions of a in staring straight defendant Bautista-Silva’s motion to suppress, weigh ahead ‘cannot in the balance in for proceedings we REMAND further con- whatsoever!,]” way but there are two opinion. sistent this problems First, proposition. with that distinguishable. the facts of Escamilla are BARKETT, Judge, Circuit dissenting: Escamilla, In the drivers of two different I believe that the district court was emi- vehicles looked straight ahead as their re- nently in finding correct totality spective proceeded vehicles through meager presented in this case do intersection, and both drivers failed ac- total suspicion, reasonable and the dis- knowledge presence pa- of a marked trict court’s conclusions are entitled to our parked trol car at the intersection. 560 deference. contrast, F.2d at appeal this The Fourth designed Amendment was five of a vehicle ner- appeared to protect rights of people against vous, ahead,” straight “continued to look unreasonable searches and As seizures. ignored Agent Cole’s obvious and re- our jurisprudence evolved, has so have our peated attempts to attract their attention. judging standards what .for constitutes Second, the reasoning the district court grounds reasonable our citi- stopping approach conflicts with the more recent however, changes, zens. Such have not required by the Supreme Court. In Ar- protections eviscerated the of the Fourth vizu, the Court made clear it has entirely, Amendment and law enforcement “deliberately reducing avoided [the con- officers required justify are still their cept of suspicion] ato neat set *9 reasonable, stops and searches a rules,” with ar- legal rejected attempt and ticulable suspicion objective based on by the Ninth Circuit “clearly delimit [to] facts occurred, that criminal either activity has officer’s consideration of certain fac- likely tors.” or is occur. Suspicion 534 U.S. at to that is not 122 S.Ct. (internal omitted). 751 quotation marks reasonable or cannot be supported by an The Court slowing stated that “a driver’s articulation logically that connects action down, stiffening posture, and to activity, simply failure to criminal is a hunch and (cid:127) pass “The location. He testified urban] [his] reason- not a seizure. permit
does incho- more than an it was where I was suspicion must be that “As sit- able suspicion or lane, unparticularized was in the outside closer to ting, ate it Powell, 222 F.3d States hunch.” United in the median —there’s two lanes—and Cir.2000) marks (quotation me, myself, front it or in between omitted). citation a truck a pickup pulling that vehicle was objects in it. flat trailer some And I case, agent in this testimony of the The by I go noticed that saw the vehicle hunch, Cole, but no may support a in occupants six in the car there were turned were articulated vehicle; they passed my location conclusion that after into a reasonable hunch act.1 to a criminal I activity plate was related that it had a license saw to supposed addition, Fourth Amendment is The Cole said California.” society free from be- protect citizens a all he noticed that the car contained male at random government ing seized subjects and he two people [the “knew appears completely their behavior when Hispanic in the front males.” seats] Indeed, the Court law-abiding. Supreme partner told point At this he his “there for- Amendment that “the Fourth has said load” and he left rest to inquire at random stopping vehicles bids area catch the Suburban. illegally are they carrying if aliens who Agent Cole admitted he did not stop- country, it also [and] in the forbids know going how fast questioning detaining persons for ping or originally passed when it the rest area than a rea- citizenship on less about their observing he from which was traffic. Nor may be they sonable suggest being the Suburban' did he v. Brignoni-Ponce, States aliens.” United erratically, simply ap- but rather driven 873, 884, 422 U.S. driving along peared to be with traffic. added). (emphasis L.Ed.2d 607 Nonetheless, acknowledged on cross ex- he majority sees the testi- In this case solely amination that fact “[b]ased do, I than mony presented differently plate, it was California license importantly, than district court more two, if Chevy with at least suburban noting the standard Although did. six, it,” already Hispanic males had majority appropriately recites review the smug- this an alien determined that “was in the responsibility our to view the facts gling case.” Bautista-Silva, most favorable light Rather, Moreover, accounting for the do even when remarkably does not so. presents prior facts in the most favor- events that occurred cobbling together government, able I an insuffi- stop of the still find , portions testimony support select suspicion. cient basis own conclusion. its that he did not “im- Agent Cole testified in the mediately pull position [of out testified on direct examina-
Agent Cole a ravine there rest because there’s area] monitoring He following: to the tion get I stuck in mud. (“I- and did want traffic on Interstate 95 southbound actually go go I behind and So 95”) near highway from a rest area Orlan- him I out the parallel down drove do, Florida, pass. when he saw a Suburban area, highway.” rest area onto the When [the he watched Sub- From rest expressed anything, skepticism dis- opinion majority states that the testimony. over the lack of a reason- trict court’s order "credited” Cole's *10 believe, that, suggests opposite. say and I if able district did not sped up approximately ninety sup- Cole The truck that the Suburban was Suburban, an hour to catch the posedly using merely miles to cloak itself was very quickly.” trailer, pickup pulling “slowed down truck an flat testified that lowered his window and eighteen-wheeler or other oversize vehicle get waved from the driver’s seat that would have hidden the from Suburban they occupants, attention of the which pickup view. The Suburban and the truck apparently respond. failed to He then only by could have been viewed the border stopped Suburban. patrol a few agents they for seconds as passed the rest area. There was no indi- facts, their These few considered in to- cation that in the drivers or tality, supporting fall short of the conclu- patrol either vehicle saw the border suspicion objectively sion “reasonable agents. any Nor did Cole offer justify” Agent existed Cole’s decision to any describing whatsoever maneu- Moore, stop. conduct a Hicks v. facts vers to “hide” or support otherwise to his Cir.2005) (11th (citing Evans v. bare might conclusions that Bautista-Silva 407 F.3d Stephens, 1280 n. trying have been to evade detection. Most Cir.2005) (en banc)). As the district court tellingly, Agent Cole never mentioned correctly concluded “almost all police report filed at the time of this upon by relied the Border Patrol incident that the Suburban made at- initiating this the size —such tempt to hide the pickup behind truck as it vehicle, and out-of-state license plates, the Viewing the rest (or area. these facts location, entirely etc.—were almost en- most favorable Bautista- neutral, tirely) when even added to- simply Silva not support does the conclu- gether suggest did not tend to doing sion that'the anything Suburban was engaged Suburban in illegal activity.” was traveling along other than highway. by Also noted the district “most [of by upon Agent the factors relied Cole] are facts, Given these unremarkable I find commonplace too support such suspi- no basis to disturb the district court’s find- cion or to given meaningful weight be in a (1) ings that: the fact that the Suburban ‘totality of the analysis.” circumstances’ traveling south on 1-95 was unre- markable because millions majority of vehicles use disagrees misapplies but corridor, the 1-95 and there was doing example, the law in For no evi- so. dence that smugglers used 1-95 attempting dispropor- to discount the court’s or tionately spot” that it was a “hot own, conclusion to justify its the ma- smuggling; fact that the Suburban jority improperly construes against Bau- had a tista-Silva, plate California license was unre- testimony re- markable because hundreds of garding the thousands regarding circumstances come visitors to Florida from pickup Suburban and California truck’s every year; the fact that the rest the vehicle area. stated was a Suburban was be- unremarkable might have been at “drift- most cause truck, border are not unani- ing” behind the pickup and that he mous in their was uncertain if it belief SUVs are the attempting to avoid However, among smugglers his detection. vehicles choice rather than con- testimony overwhelming strue this in favor there are of Bautista- number of law Silva, SUVs; majority abiding traveling citizens 1-95 in finds the Subur- up ban’s movement pickup speeding truck was Suburban’s and slow- “suspicious,” ing finding unsupported by down was unremarkable because “this —a the record evidence. sufficiently way different
1277 acknowledged court further to The district on Interstate 95 routinely drive others proximity lack to Mexican Florida’s especially given that suspicion,” warrant border, weighs against govern- which to attempted escape never the Suburban ment, devoid of evi- and the record was under highway; by exiting was overloaded dence that the Suburban fact that precedent, prior Fifth Circuit passengers attempted to con- or that ahead and straight stared the defendants noting is ceal themselves. It also worth marked acknowledge not did -in Florida presence Hispanics that the weight in assigned any not be car could uncommon, hardly be or indic- can deemed stop, a constitutionality of assessing the or Fi- anything suspicious illegal. ative of was no as there evidence especially court noted that the district nally, saw Cole’s bor- Bautista-Silva even Perez, his failed partner, Cole and patrol car.2 der Treasury to Enforcement Com- check Moreover, precedent, our dis- under to if the System munications see Suburban sup- further trict conclusions court’s smuggling. human associated with was underlying of facts by the lack ported court’s Our deference is the district As an en expertise. asserted Agent Cole’s majority is findings. factual correct Frazier, v. in United States banc the threshold for reasonable (11th Cir.2004), we said: 1244 F.3d 387 investigatory stop justifying is lower “[sjince solely or expert] relying [the probable jus- than the threshold cause remained experience, his primarily However, permit tifying an arrest. explain expe- how burden [his] permit mere stop under these is reached, conclusion he rience led to the stops, legitimize hunches awas sufficient basis why experience correctly de- suspicion. The district court just experi- how that opinion, for the led termined that the circumstances that reliably applied ence %vas at the Agent Cole to conclude rest facts of added). (emphasis Id. at 1265 case.” suspicion that there was reasonable hearing testimo- suppression Agent Cole’s illegal aliens could contained Suburban contrast, highly generalized ny, “particularized objectively support a experience tether sufficiently objective suspecting failed to basis” for example, al- activity. For All that Cole knew to the relevant facts. alien stopped many have that this “was an though he claimed to when he decided 1-95, proceeded evidence of there no case” vehicles on a out was that Califor- any, stops if of those turned many, how plates and all male possibly license nia involve aliens. portion of rural southeastern Ari- a majority, I do not find that the remote Unlike zona),” officer is entitled to assess prior and that an Fifth Circuit district court's reliance Escamilla, U.S. at 122 S.Ct. v. that situation. 534 precedent, United States 560 however, Here, added). 1229, (5th Cir.1977), (emphasis there is without anyone in the Suburban Supreme no evidence despite Court's observa- is merit Arvizu, agent. spotted More- the border 534 U.S. tions in United States over, (2002). presence on southbound the Suburban’s L.Ed.2d 740 Orlando, through is more Florida much "a 1-95 driver’s the Court remarked Arvizu down, highway than busy San Francisco similar to stiffening posture, and fail- slowing I- portion of rural Arizona. sighted it is to remote acknowledge a law enforcement ure to highway Florida heavily traveled 95 is might be unremarkable in one officer well major metropolitan (such busy high- Orlando is one Francisco as a San instance (such way) areas Florida. quite unusual another while *12 passengers, including Hispanics, two Florida,
traveling 1-95 through along- truck as it pickup
side the rest sufficiently unremarkable
area —all events conjunction
even when considered in factors,
each other. These even when together, support nothing
viewed more impermissible
than profiling racial
should never be used under our Constitu- randomly
tion as an excuse for stopping many Hispanic motorists that highways
travel Florida I SUV’s.
respectfully dissent.
Daisy ABDUR-RAHMAN, Ryan Petty,
Plaintiffs-Appellants, WALKER, Gudewicz,
John Chester
Jr., Defendants-Appellees.
No. 08-12345.
United Appeals, States Court of
Eleventh Circuit.
May