United States v. Francisco Hernandez-Alvarado
891 F.2d 1414
9th Cir.
1989
Check Treatment

*1 compliance. Based made moot such us, indicates that record before in doubt as of

Kersting’s compliance was affirm the district

September we enforcing order January

court’s

the summons. August court’s

We affirm the district relating to of the four motions

1988 denial ground that the dis-

the summons on the jurisdiction to decide the

trict court lacked at that time. We

merits of the motions court, at its to allow the district

remand

discretion, develop further the record on their merits

and to decide the motions Kersting’s opposition to

should it find that by compli- moot

enforcement is not made

ance.

REMANDED. America,

UNITED STATES

Plaintiff-Appellee, HERNANDEZ-ALVARADO,

Francisco

Defendant-Appellant.

No. 88-1265. Appeals,

United States Court of

Ninth Circuit.

Argued and Feb. 1989. Submitted

Decided Dec. Robles, H. Asst. Federal Public De-

Jose Tucson, Ariz., fender, defendant-appel- for lant. Johnson, Atty., K. Asst. Tuc-

Janet U.S. son, Ariz., plaintiff-appellee. for *2 dropped and cious of this behavior back the vehicle. follow behind, Truty From noted several factors which led him to believe he had reasonable GOODWIN, Judge, Before and Chief First, stop the defendant. NELSON, and Circuit ALARCON displayed car Hernandez-Alvarado’s Judges. “Best Deal Auto” license frame. Truty stated that Best Deal Auto was an NELSON, Judge: Circuit dealership among Nogales auto known appeals Defendant Hernandez-Alvarado agents area as notorious for narcotics ac- and denial of district court’s conviction tivity. Nogales agents marijua- had seized Defen- suppress his motion to evidence.1 bearing na from several vehicles the “Best dant did not have claims that officers however, logo; Truty Deal Auto” stated car, his and reasonable law-abiding that he citizens also believed illegal and sei- thus conducted an search dealership. vehicles at the We zure in of the fourth amendment. violation concerning have no statistics the number of agree We and reverse the district court’s dealerships Nogales or the number ruling. people by of cars sold to innocent Best Deal Auto. FACTUAL AND PROCEDURAL Truty pro- further noticed an antenna BACKGROUND truding Drug from defendant’s trunk. smugglers frequently 22, 1987, use radios with such On December United States co-conspira- antennas to communicate with Agents Christopher Truty Border Patrol tors, Truty any gestures but did not notice conducting Diane traffic and Smith were to indicate that defendant used radio. Highway on Interstate 19 near surveillance Nogales, Arizona. As headed north- Truty reg- decided to check the vehicle’s bound, approximately eight kilometers results, waiting istration. While for the he border, they from the Mexican saw defen- vehicle, following continued defendant’s beige dant’s in front Oldsmobile speed per which maintained a of 55 miles Agent Truty of them. noticed that defen- proceeded very in a cautious man- hour and capacity, dant’s vehicle had a trunk ner. Hernandez-Alvarado looked capable carrying contraband. agents several times rearview mirror at agents attempted to evade the or but never Truty pulled up alongside defendant’s ve- exit the interstate on one of the two off- passen- hicle and saw defendant and two ramps passed. gers, a nine or and an older woman, sitting in the front seat of the car.2 revealed that the registration cheek looked Hernandez-Alvarado toward the neigh- in Monte car’s lived Carlo owner agents, quickly away then turned and di- Arizona, neighbor- Nogales, borhood of All rected his attention to the road. three to the Mexican border. adjacent hood occupants sitting rigid up- were in a that narcotics had There were indications manner, speaking tight were not to each smuggled across the border into been other, appeared preceding to have “tunnel vi- during two Monte Carlo in- neighborhood sion.” Hernandez-Alvarado reduced his was under weeks. The per activity, vestigation from 65 miles hour to 55 miles for narcotics but registra- per posted speed particular hour. The limit was 65 address on the vehicle’s investigation. suspi- per Agent Truty hour. tion was not under miles driving Although Judge presid- individuals hearing, Truty 2. Most other cars contained Robert C. Broomfield suppression trial, stat- to work. At the Judge Marquez ed Alfredo C. among drug smugglers ed that there is a trend United States District Court for the District of morning early in order to blend to travel in the denying appellant’s Arizona entered the order However, force. the incident in with the work suppress motion to evidence. Christmas, making family occurred the week of morning unusual. in the less travel factors, suspicion in Truty pulled supporting facts Based on the above light experience, experience may not of his defendant’s vehicle over about 10 kilome- dis- give used to the officers unbridled ters the car first attracted his from where Nicacio v. making stop.” agents found 258 cretion attention. The about *3 I.N.S., (9th 700, 705 States United pounds in Hernandez-Alvara- 797 F.2d marijuana of Cir.1985). charged do’s trunk. Defendant was with possession one count of with intent to dis- present The facts of case a close this kilograms marijuana in tribute 100-1000 question or not there was as to whether 841(a)(1) violation of 21 U.S.C. and 841 § suspicion the above reasonable under 13, 841(b)(l)(B)(vii) January on U.S.C. § guidelines. Agent to factors known pre-trial 1988. filed a motion to Defendant Truty stopped at the time he defendant trunk, suppress found in the the evidence present “totality of circumstances” that claiming agents the had no reasonable sus- seems to fall somewhere between cases picion car. The motion was to suspicion found and which have reasonable 3, juryA denied on March found Thus, analyz- those which have not. before guilty charged Hernandez-Alvarado as case, ing survey the instant it is useful to 8, March 1988. He was sentenced to respect the relevant caselaw with to this prison spe- five-year four-year term with a issue. parole cial term. I. Cases which have no reasonable found

DISCUSSION suspicion. Truty Whether had reasonable In the landmark case of United States v. investigatory stop suspicion an is Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. question a mixed of law and fact which we (1975), 45 L.Ed.2d 607 the Court held Thomas, review de novo. States v. United may arbitrarily stop that officers not all (9th Cir.1988). 680 An offi persons appearance ques- of Mexican may investigatory stop if cer make an he is citizenship tion them about their without which, specific, aware of facts articulable any they reasonable are il- together objective with and reasonable in legal Although aliens. there was no rea- ferences, suspecting for form basis Brignoni-Ponce, sonable in particular person engaged detained is court articulated certain an factors officer United States v. Cor may in criminal in determining consider tez, 411, 416-18, 101 S.Ct. suspicion. They include the characteristics 694-95, (1981). Such deter of the area in which encounter a ve- readily mination is not reduced to “a neat hicle, border, proximity pat- to the usual Gates, Illinois legal set of rules.” 462 traffic, illegal terns of recent border cross- 213, 232, 2317, 2329, U.S. 76 103 S.Ct. behavior, ings, aspects a driver’s (1983). L.Ed.2d must 527 The officer con Id. at 884-85, vehicle itself. 95 S.Ct. at “totality sider the of the circumstances— Subsequent interpretations 2581-82. Sokoloww, United States v. picture.” the whole highly these factors have created a incon- U.S.-, 1581, 1585, 104 109 S.Ct. - law, body sistent and some of the Cortez, (1989) (quoting L.Ed.2d given weight factors have been lesser in 695). 101 S.Ct. at illegal contexts other smuggling. than alien Carrizoza-Gaxiola, In United States v. interpreted The facts are to be in light experience. (9th of a Cir.1975), trained officer’s F.2d 239 state and feder- 449 U.S. at 101 S.Ct. at 695. al officers were joint in a effort to They must, however, intercept more than the be stolen being transported cars into subjective impressions particular Nogales, week, mere of a Mexico at Arizona. Each officer. or Permissible deductions rational about 30 late-model Ford LTDs were sto- len, grounded objective inferences must and some of them were discovered in information, capable explana facts and be of rational Mexico. Based on this offi- tion; may stopped “while an officer evaluate the cers defendant due to his Mexican appearance and the fact that he was driv- address and being vehicle were used for ing Nogales from Tucson to in a late-model smuggling Upon investigation aliens.4 appeared Ford LTD be brand new. tip, particular- officers observed such The Ninth held that Circuit the officers conducting ized behavior as a man “coun- suspicion. lacked reasonable serving ter-surveillance” and as a lookout. signal, theOn lookout’s four men walked arena,

In the narcotics this court found hurriedly suspect’s from the house to United States v. no reasonable Morrison, 1976), tip. 546 F.2d 319 exact car identified The men sat where defendant’s car was appeared low the rear seat and to be of dust-free, officers, unfamiliar had a Mexican descent. The court held that trunk, bore an out-of-town license together these supported factors frame, and was two and a suspicion. of reasonable *4 half highway miles from the border on a In United States v. 411, drug-smuggling a notorious area. Three (1981), 101 S.Ct. 66 L.Ed.2d 621 offi- Texas, later, in Brown v. years cers had on several occasions observed the (1979), 99 S.Ct. the tracks of people leading 8 to 20 across the Supreme any spe Court held that without desert from specif- the Mexican border to a cific suspects indication that have been en point Highway ic on running a road gaged activity, police in criminal officers do parallel Through to the border. careful suspicion not have reasonable an study, these officers likely determined the Brown, investigatory stop. In the officers night smuggle, of the precise next alien the walking had detained away two men from highway mile marker of the pickup, the alley each other an in an area awith type of carry vehicle that would be used to high drug incidence of traffic. The officers many passengers, the pickup time the the just believed men had met or were made, would be the direction the vehicle drug about to meet for a transaction when to, would come from and return and how but, patrol appeared their ap as “the long get it would take the vehicle to from pellant’s activity was no different from the point the pick-up officers’ stake-out to the activity pedestrians neigh of other in that 413-15, Id. borhood,” point again. and back at 101 investigatory stop the was not Id. at justified.3 information, at 99 at 2641. S.Ct. 692-94. Based on this S.Ct. they stopped the one vehicle which fit Cases have reasonable II. found every illegal criterion and found six aliens suspicion. inside. The court held that reasonable sus- since, picion totality existed based on the upheld When courts have a light circumstances and in of the officers’ suspicion, reasonable it has been on the experience, police reasonably the could sur- particularized of more basis information. Garcia-Nunez, United stopped In mise that the States v. vehicle was 709 (9th Cir.1983), Id. 421-22, F.2d 559 officers had re- in criminal 101 anonymous tip specific an ceived that a at 697. S.Ct. context, illegal notwithstanding presence following

3. Even in the alien the standard the uneven, is unclear. In the consolidated cases of United paint job factors: the home-made on Ortiz, States v. and United States v. car; erratic, 604 Munoz defendant’s the evasive manner of (9th Cir.1979), F.2d 1160 totality the court held that the driving; dirty appearance the defendant’s the support of the circumstances did not passengers, the defendant and his as if had reasonable where two vehicles were hair; slept combing without their the nervous day, in tandem on a hot summer one passengers riding demeanor of the seat; in the back contained a child in the front seat between two indication, appearance, an based on seats, adults and bucket the drivers had a Mexi- occupants the of the vehicle are of Mexican appearance, occupants can and vehicle did not descent. agents. look at the Ortega-Serrano, In United States v. tip specific point containing 4. The was to the (5th 1986), 299 the Fifth Circuit found rea plate, suspect the license color and make of the suspicion lacking sonable where defendant’s car Garcia-Nunez, automobile. 709 F.2d at 561. stopped was 300 to 400 miles from the border Thomas, context, Finally, in the Ninth United States v. In narcotics Cir- Cir.1988), found F.2d 678 the court reasonable where cuit has found suspicion in a counterfeit case. highly specific reasonable informa- police acted specific Again, police had broadcast example, in tion. For United States suspects’ location (9th Cir.1986), information about the Sutton, F.2d 1415 offi- description. An officer near the loca- plane low-fly- make a cers observed a small attempting tion men to exit observed two Square, ing pass over a vehicle at Bombers parking wrong way across the lot commonly smuggling They area. used reported from the location. The two street airplane previously had observed the same description, men fit and the the broadcast being the same used vehicle likely for officer concluded that it would be smuggling organization for narcotics activi- suspects exiting parking lot the be intercepted ty, and the officers had also wrong way in the area. their haste to leave messages airplane from the to the vehicle Id. at 681-83. reasonably interpreted which could as drug progress. referring to a transaction III. The Instant Case circumstances, this court held Under these suspicion to that the had reasonable ascertaining In the officers act- whether ground vehicle. ed on the instant case, totality we must determine from the particularity required in The same *5 of the circumstances whether their infer- dealing cases two other Ninth Circuit with spe- ence of criminal conduct was based on Ichiyasu, different crimes. In Guam cific, Cortez, articulable facts. See (9th Cir.1988), the de 838 F.2d 353 416-18, U.S. at 101 S.Ct. at 694-95. No partment reports broadcast several describ single dispositive factor is in this assess- ing notifying a hit-and-run driver’s car and ment; togeth- the issue is whether “taken that it headed a dead- officers down er, they suspicion.” amount to reasonable pier. An end road that terminated at a Sokolow, 109 at 1586. S.Ct. officer near the area a taxi leav observed road, ing the at deserted time of dead-end a The record indicates that the offi night, carrying passenger one who seemed suspicions cers’ were founded on a number out-of-place in The the area.5 court held events, significant the most are supported that these facts reasonable sus (1) following: the the nervous demeanor of picion. passengers both the defendant and his as truck; (2) they sat in the the reduction in Nikzad, In United States v. (3) speed m.p.h.; pres from 65 to 55 the (9th Cir.1984), the defendant drew at- two-way ence of a antenna on the trunk of airport tention to himself in an he when vehicle; (4) the defendant’s residence in a kept looking nervously at back officers neighborhood on the U.S.-Mexican border observing arriving passengers. who were investigation which was under for narcotics baggage Officers followed Nikzad to the (5) activity; the license bracket indi area, “continually claim he shifted where cating the car had been weight his from foot to foot walked dealership drug from a associated with point back and forth. At one he stared at (6) trafficking; and the size of defendant’s officers, eye the but avoided contact and trunk. agent moved out of when one re- view jointly, turned the stare.” at 1432. Defen- Id. Considered these factors are in- unusually justify dant’s was suf- sufficient to an investigatory stop. nervous behavior ficient, held, they may court constitute reason- While allow certain inferences to drawn, they possession. many able for narcotics Id. be describe too individu- at 1433. als to create a reasonable power Ichiyasu plant might 5. The a cab with an officer in "saw sailors and workers elderly emerging passenger present elderly, well-dressed from at such an An [there] hour. place the road which was in a non-residential area at well-dressed man seemed out of in the morning. Ichiyasu, two o’clock in the He knew that area.” 838 F.2d at 356. suppress. sepa- in motion to I write particular this defendant is lant’s example, For while the criminal agree rately my because I do not with question dealership in has been associ- colleagues that the facts of this case drug activity, many citizens with ated with present question. a close drug trafficking no connection to also have Supreme Court United States v. Likewise, purchased family there. vehicles Sokolow, 109 1581 reiterated “one of S.Ct. law-abiding two-way many motorists have relatively simple concepts” that in re cars, on their near antennas installed live viewing the record to determine whether border, the Mexican and reduce their justifying existed freeway being when followed Thus, detention, totality law enforcement vehicle. these facts “we ‘the must consider do not constitute reasonable combination pic-t the circumstances—the whole suspicion. (quoting ure....’” Id. 109 S.Ct. at 1585 United States v. adding the fact that Even defendant passengers silently 690, 694, (1981)). in the sat vehicle 101 S.Ct. 66 L.Ed.2d 621 staring carrying when the car DEA ahead Sokolow, upholding In detention alleged agents approached, defendant’s prior holding Court also relied on its nervousness is insufficient create rea- Georgia, Reid v. 100 S.Ct. suspicion.6 The instant case sonable is 2752, (1980) curiam). (per readily distinguishable regard in this from reversing suspi- In of reasonable Nikzad, where the defendant drew atten- Georgia, cion in Reid v. the Court conclud- by glancing repeatedly at tion to himself upon by ed that the circumstances relied manner, the DEA officers in a furtive con- the officer to a detention “describe forth, tinually shifted back and and moved very large category presumably inno- agents out of view of the when looked travelers, subject cent who would be at him. virtually random seizures were Court earlier, *6 As we stated this is a close case to conclude that as little foundation as and the court is mindful that law enforce- justify in a sei- there was this case would personnel probabilities ment who deal in zure.” Id. at 100 at 2754. S.Ct. rely rather than certainties must on their experience to make “common-sense conclu- by Agent Truty in facts articulated Sokolow, sions about human behavior.” matter, justify curtailing to Hernan- this (quoting 109 S.Ct. at 1585 liberty, very dez-Alvarado’s a describe 695). exercising In at 101 S.Ct. at group presumably per- large of innocent however, judgment, their officers Nogales, sons who live in or near Arizona. may infringe rights privacy not of indi- man, a.m., Agent Truty saw a At 8:00 cause, just regardless viduals without of woman, and child a nine or any guilt. eventual determination of In days in three an automobile be- case, totality this where the of the circum- highway an interstate fore Christmas on investigatory justify stances did not an Nogales, ap- conduct near Arizona. This stop, the search of Hernandez-Alvarado’s because, Agent Truty peared suspicious to by Agents Truty Patrol Border opinion, drug smugglers in his travel appellant’s fourth amend- Smith violated that time to in with the work force. blend rights. Accordingly, judgment ment of Apparently, the officer’s view the district court is REVERSED. Constitution, justify would ALARCON, Judge, concurring Circuit stopping highway all automobiles on the Judgment: in the might possibly one of them contain because smugglers trying into commuter to blend majority’s

I concur in the conclusion that appel- in denying the district court erred traffic. I.N.S., fact, eye 700 v. United States In avoidance of contact has been Here, 1986). inappropriate the fact that Hernandez-Alvarado deemed an factor to consider un- driving precludes presence any "special of such make innocent was ] less circumstances [ eye improbable.” contact Nicacio circumstances. avoidance of suspicious

Agent Truty they large was also were manufactured with trunk because capacity. reduced its from the automobile per posted limit of 65 miles hour to 55 Agent Truty’s regis- check of the vehicle per the driver miles hour after looked at owner, tration established that Guada- Agent's marked the Border Patrol vehicle. Hernandez-Ramos, lupe lived the Monte Agent Truty’s suspicions Presumably, Nogales, Agent area of Arizona. Carlo aroused if the vehicle would also have been Truty neighborhood testified that this was speed! increased its investigation activity. under for narcotics However, the owner’s address was not un- Agent Truty also noted that the driver Nevertheless, investigation. der the fact seeing away after him and turned directed that of owner the car lived in that his attention to the road ahead. This con- neighborhood upon by Agent relied Agent Truty to follow the duct caused ve- Truty vehicle, driven a man compliance I hicle. fail to see how with an obviously registered who was not the own- i.e., elementary highway safety, of rule er, any without evidence that the owner or ahead, keeping your eyes traffic on the can suspected on-going the driver was crimi- on-go- demonstrate reasonable nal The fourth amendment does activity, especially ing criminal at 55 miles contemplate not the random search of all per hour. neighborhood vehicles in a because some of Agent Truty also observed Hernan- the residents are known criminals. dez-Alvarado’s vehicle had “Best Deal Agent Truty’s unparticularized suspi- plate According frame. Auto” license proved cions A quantity accurate. Agents Agent Truty, Border Patrol in the marijuana was found in the trunk. It is of Nogales marijuana seized area had from course black letter law that a search cannot bearing the several vehicles “Best Deal justified by be the seizure of contraband. Auto” license frames. The record Long ago, Ohio, in Terry innocent, law-abiding shows that citizens (1968), S.Ct. the Su- also vehicles from Best Deal preme Court instructed that a detention detention, If Auto. this factor can justified by cannot be an officer’s “inchoate purchasers then all of automobiles from ” unparticularized suspicion or ‘hunch.’ subject Best Deal Auto would random Id. at 88 S.Ct. at 1883. The Court proof any particular- searches without Sokolow, reaffirmed principle this ized were S.Ct. at 1585. *7 criminal by majority, As noted reject- we have Agent Truty testified that he took into government’s ed the suggestion in a num- consideration, determining that he could of ber other matters that lucky similar stop vehicle, Hernandez-Alvarado’s that it justified hunches a detention. Majority large capacity capable carry- had trunk Opinion at 1416-17. Recently in United ing pro- contraband and a radio antenna States L., v. Robert 703-05 truding from the trunk lid. He also testi- (9th Cir.1989), we held that a Terry smugglers drug fied that use similar anten- justified was not where the same Border nae to communicate with their confeder- Agent, Patrol Truty, testified that the de- ates. No evidence was offered to show “glanced quickly” fendant at the officer broadcasting that the car in fact had a unit eyes “and then returned his to the road.” attempted or that Hernandez-Alvarado to activity We concluded that this was normal anyone prior stop. communicate with to the under the circumstances. Id. at 703. We space The trunk of Hernandez-Alvara- also observed that the fact that an older do’s apparently vehicle was the same as model Oldsmobilehad a provid- trunk that found on all support” Oldsmobiles the same ed “scant appear where it did not vintage. Clearly, it heavily would be a violation of to be loaded and there were “no fourth principles permit amendment to ran- distinguishing other attributes.” Id. at dom simply searches of all court, vehicles because 705. In the matter before this there presumably innocent trav- this detention of the Oldsmobile driven is no evidence appeared to be elers. by Hernandez-Alvarado modified to

heavily loaded or had been

carry contraband. correctly that we majority *8 Mexico. who live near our border with

sons order, we uphold

To the district court’s random detention

would have to condone Ameri- number of

and searches of in a simply because live

can residents area, drive

depressed, crime ridden border cars, accompanied by their fami-

old when

lies, seeing a straight ahead after and look enforcement vehicle.

law Georgia, Reid v. and United

Under Sokolow, compelled we are

States upholding the district court’s order

reverse notes informa required particularized more have support cases to previous tion in activity suspicion of criminal of reasonable stop. Majority opinion at justify Terry 1417-18; also v. see United States REED, Plaintiff-Appellant, Robert Woods, F.2d 1026-27 1983) (officers suspicion had reasonable informant HOY; Douglas County; Douglas activity where reliable criminal Daniel accompanied Office, pregnant woman told them a County Sheriff's going meet a wom by small child was Defendants-Appellees. Diego arriving at the San an who would be No. 87-4324. and officers ob airport carrying cocaine Appeals, United States Court of description fitting this dis served a woman Ninth Circuit. another wom the contents of a box to play Perez-Esparza, 609 an); States v. United Argued 1989. and Submitted June (9th Cir.1979)(officers had F.2d Decided Dec. stop defendant’s suspicion to informant identified car where a reliable smuggle car as one used defendant’s States from Mexi narcotics into the United co). matter, upheld In this the district court Hispanic man the detention of a who border, Mexican driving an old car near the accompanied by his wife and child, traffic in commuter within (1) limit, smug- testimony based detection, glers escape at that time to drive (2) car was from dealer drug traffickers sells automobiles to who traffickers, (3) non-drug it was neigh- person who lives in a registered to a persons have been where other borhood trafficking. The arrested for narcotics per- majority describe a above facts