OPINION OF THE COURT
(March 27, 2009)
Domiquite Mathurin was convicted by a jury of possession with intent to distribute cocaine, while aiding and abetting his co-defendant, Francisco Perez-Polanco, and unlawfully using cellular phones to facilitate possession with intent to distribute cocaine. On appeal, he contends that the District Court committed reversible error in denying in part his motion to suppress cocaine discovered during a stop of a vehicle in which he was a passenger. Specifically, Mathurin argues that the law enforcement officers lacked reasonable suspicion under the Fourth Amеndment, as needed for a valid investigatory stop of the vehicle in which he was traveling, because the facts the officers relied upon, under the totality of the circumstances, failed to eliminate a substantial portion of innocent travelers. Because we conclude that the officers possessed sufficient information to give rise to a reasonable suspicion, we will affirm Mathurin’s conviction.
*1200 I.
A. Factual History
At approximately 11:00 a.m. on June 15, 2006, Hillary Hodge, Jr. (“Agent Hodge”), the resident agent in charge for the United States Department of Homeland Security (“DHS”), Immigration and Customs Enforсement (“ICE”) Office of Investigations, received a call from a DHS Customs and Border Protection (“CBP”) aircraft, alerting him that a “suspicious vessel” had departed Culebra, Puerto Rico and was heading for Crown Bay Marina (“Marina”) in St. Thomas, United States Virgin Islands. CBP described the boat as suspicious because “it was a yolla-type vessel, low to the water line, painted probably blue in color, two outboard engines, no appearance of any recreational use ..., and with only a single occupant on board.”
Agent Hodge directed two agents in his local ICE office, Sрecial Agent Michael Aguilar (“Agent Aguilar”) and Task Force Agent Shawn Querrard, to go to the Marina to look for the vessel, and then contacted the Drug Enforcement Administration (“DEA”) resident agent in charge in St. Thomas to seek assistance in locating the boat and person on board. The ICE agents located the boat matching the tipster’s description docked in a slip at the Marina and maintained surveillance on it. CBP Inspector Richard Peak joined them shortly thereafter. The agents questioned Marina workers and learned that a man named Francisco Perez-Polаnco 1 had arrived in the boat, checked into the Marina that day, rented the slip until midnight that evening for approximately $43 or $45, requested a taxi to the nearest hotel, and carried no luggage.
The agents called local area hotels and located Perez-Polanco at the Island Beachcomber Hotel (“Hotel”). After serving the Hotel with a DEA administrative subpoena, the agents further learned that Perez-Polanco paid approximately $116 for the room in cash, checked in that day, planned to check out the following day, and occupied room 207. The agents researched Perez-Polanco’s criminal record and found that he was arrested in Puerto Rico on April 26, 2004, for possession of *1201 approximately six kilograms of cocaine. In September 2004, he was “detained in the seizure of approximately $260,000,” and was also arrested in April 2005 for aggravated assault.
The agents established surveillance on the hotel room because, as Agent Aguilar later testified, Perez-Polanco was a “known drug trafficker” and they believed, based on their experience in St. Thomas, that “a drug transaction was imminent.” After sеveral hours of surveillance, the agents noticed Mathurin arrive at the Hotel around 7:30 p.m. in a green Toyota 4Runner with Dionicio Mercedes. Mathurin exited the vehicle with a light-colored plastic bag, entered Perez-Polanco’s hotel room, exited it a few minutes later without the plastic bag, and left the Hotel in the 4Runner. At around 9:30 p.m., the agents observed the same 4Runner arrive at the Hotel again. Mathurin exited the vehicle carrying a dark-colored plastic bag and entered Perez-Polanco’s hotel room. Mathurin exited the room alone a few minutes later without the plastic bag, and started to return to the vehicle. Shortly thereafter, Perez-Polanco exited the hotel room with a small tan backpack on his back. However, before proceeding toward the parking lot, he paused to look around, then headed to the same 4Runner, leaving some distance between Mathurin and himself. Mathurin and Perez-Polanco both got into the 4Runner.
The 4Runner left the Hotel parking lot with Mercedes driving, heading in the direction of the Marina. The agents stopped the vehicle and ordered all three men out of the car. Perеz-Polanco fled on foot from the rear seat of the vehicle. The officers arrested Mathurin and Mercedes, and later apprehended Perez-Polanco. The agents found a tan backpack in the back seat of the 4Runner, which contained 2.2 kilograms of a substance that tested positive for cocaine.
B. Procedural History
On July 6, 2006, a grand jury returned a three-count indictment against Mathurin and his codefendants. Count one charged Mathurin with possessing with intent to distribute 2.2 kilograms of cocaine, while aiding and abetting Perez-Polanco, in violation of 18 U.S.C. § 2, and 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and count three сharged him with using cellular phones to facilitate possession with intent to distribute cocaine in violation of 21 U.S.C. § 843(b) and (d)(1). Count two charged PerezPolanco with violating 21 U.S.C. § 843(b) and (d)(1) as well.
*1202 Mathurin filed a motion to suppress the evidence obtained from the search of the 4Runner and the statements he made to law enforcement agents following his corresponding arrest and interrogation. The District Court held a hearing on this motion and denied Mathurin’s motion to suppress the cocaine found in the 4Runner, finding that the agents had reasonable suspicion to stop the vehicle to “confirm оr dispel their suspicion that [Perez-]Polanco was engaged in criminal activity.” The agents lawfully arrested Perez-Polanco outside the 4Runner as he attempted to flee, and therefore legally discovered the cocaine in the rear seat as part of a search incident to Perez-Polanco’s arrest. 2 The agents would have had probable cause to arrest Mathurin at that point, making the cocaine admissible against him as well.
As a result, Mathurin proceeded to trial, and a jury found him guilty of both counts on which he was tried. On November 20, 2007, the District Court sentenсed Mathurin to 78 months’ imprisonment with credit for time served. Mathurin filed this timely appeal of his conviction, challenging the District Court’s denial of his motion to suppress the cocaine found in the 4Runner.
II.
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3231 and 48 U.S.C. § 1612. We have jurisdiction over Mathurin’s appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 1294(3). In considering the District Court’s denial of Mathurin’s motion to suppress, we review the Court’s underlying factual findings for clear
*1203
error, and we exercise plenary review over its application of the law to those facts.
United States
v.
Whitted,
III.
The Fourth Amendment prohibits “unreasonable sеarches and seizures,” and searches without a warrant are presumptively unreasonable. U.S. CONST, amend. IV;
3
Horton
v.
California,
Reasonable suspicion is just that: suspicion that is reasonably based on the totality of the facts and circumstances. It is a belief that has been defined as “‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.”
Ornelas,
*1204
To assess whether reasonable suspicion existed “that the particular individual being stopped [wa]s engaged in wrongdoing,” courts look to “the totality of the circumstances” from the viewpoint of law enforcement officers, which involves dealing not “with hard certainties, but with probabilities.”
Cortez,
The sole issue in the instant appeal is whether the agents had reasonable suspicion to seize Mathurin when they pulled over the 4Runner in which he was a passenger for an investigatory stop. The Government asserts that the following facts gave the agents reasonable suspicion that Mathurin and Perez-Polanco were involved in drug trafficking activity: First, a resident agent at the St. Thomas ICE office received a tip from a CBP aircraft that a suspicious boat was approaching St. Thomas, which matched the description of the boat that actually arrived at the Marina. Second, Perez-Polanco rented a Marina slip only until midnight, made a hotel reservation for one night, and carried no luggage. Third, Perez-Polanco was operating the vessel and had previously been arrested with large amounts of cocaine and cash. Fourth, Mathurin entered Perez-Polanco’s hotel room twice in the course of two hours, leaving a plastic bag behind each time. Finally, both men left the hotel room around the same time, but separately, and, after Perez-Polanco engaged in what the agents perceived to be countersurveillance, drove away together from the Hotel in a 4Runner in the direction of the Marina. Mathurin argues that these factors as a whole fail to rise to a reasonable suspicion. We will examine the factors separately to address their individual significance, and then in the aggregate to assess the agents’ reasonable suspicion under our totality of the circumstances inquiry.
First, St. Thomas ICE received a tip from CBP that a suspicious vessel was approaching St. Thomas, which matched the description of Perez-Polanco’s yolla found at the Marina. Mathurin argues that the tip *1205 that Agent Hodge received from the DHS CBP aircraft was unreliable, and thereby attempts to undermine the significance of the first factor оn which the District Court relied. Specifically, he asserts that the District Court clearly erred in misattributing the source of the tip as ICE Puerto Rico and that we should treat the tip as anonymous. While we acknowledge the District Court’s error in analyzing the tip as if it originated from ICE Puerto Rico, 4 we believe this mistake does not undermine the weight the District Court afforded this factor in its totality of the circumstances analysis. It is undisputed that the tip came from one federal law enforcement agency to another, and that the tipster agency communicated with ICE St. Thomas to alert it to an incоming vessel that it deemed suspicious for reasons it explained at the time. Further, Agent Aguilar testified at Mathurin’s suppression motion hearing that
“ [o]nce we receive a lead or tip from another federal agency, we treat that as a credible source of information, and we act upon it.
We use that as a basis or starting point for our investigation. And we use that other agency’s report and their experience to tell us that, for whatever reason, this vessel in this instance was suspicious . .. .” 5
Therefore, whether the tip originated from ICE Puerto Rico or a DHS-opеrated CBP aircraft is inapposite in our assessment of the weight ICE St. Thomas should have afforded it.
Mathurin also argues that we should view the tip as anonymous, and therefore less reliable. He asserts that a tip from ICE Puerto Rico to ICE St. Thomas, in contrast to a tip from the CBP aircraft, would have enabled Agent Hodge to determine the caller’s identity, the caller’s basis for
*1206
deeming the vessel suspicious, as well as what type of criminal activity to investigate, but that, instead, we must surmise the answers to those questions based on the limited information the DHS CBP aircraft provided to ICE St. Thomas. He relies on
United States v. Roberson,
a case in which we treated a call to a 911 operator from an unidentified caller as an anonymous tip.
See
We decline to treat the CBP tip as anonymous.
Roberson
is readily distinguishable from the factual scenario presented here. We need not undertake the established legal methods for testing the reliability of this tip because a tip from one federal law enforcement agency to another implies a degree of expertise and a shared purpose in stopping illegal activity, because the agency’s identity is known.
Cf. United States
v.
Torres,
We find this factor probative because we defer to the agents’ training and experience, and acknowledge their testimony that they deemed the vessel approaching the Marina suspicious.
See Arvizu,
Mathurin argues that the remaining factors on which law enforcement relied in establishing reasonable suspicion do not combine to give rise to reasonable suspicion of illegal activity, nor do they “eliminate a substantial portion of innocent travelers.”
Karnes,
Third, once the agents discovered the identity of the boat’s occupant, they ran a criminal background check and found that police had previously arrested Perez-Polanco in Puerto Rico on separate occasions, once with cocaine and another time with a large amount of cash — a “tool[] of the trade common for drug dealers,” according to the Government. Mathurin acknowledges that Perez-Polanco’s criminal past, involving cocaine and large sums of cash on his person, was a valid factor for thе District Court to consider, among others, when it assessed reasonable suspicion under the totality of the circumstances. Yet, a past criminal conviction, never mind an arrest record, is not sufficient alone for reasonable suspicion; law enforcement agents must support this fact with sufficient corroborating evidence.
See, e.g., United States
v.
Ten Thousand Seven Hundred Dollars & No Cents in U.S. Currency,
Fourth, the District Court viewed Mathurin’s visits to the Hotel as probative. In the time span of two hours, Mathurin visited PerezPolanco’s hotel room twice, proceeding directly to the room both times. On both occasions, he entered the room carrying a plastic bag, and he left each time without it. Agent Aguilar did not testify to any details about the plastic bags beyond that the first one was “light-colored” and the second one was “dark-colored.” Mathurin stayed in Perez-Polanco’s room no longer than a few minutes on each visit.
Finally, the District Court reliеd on Mathurin and Perez-Polanco’s separate exits from the hotel room following Mathurin’s second visit as a factor raising suspicion, and the Government continues to advance it as important evidence in the agents’ calculus. Mathurin argues that “[u]nlike cases where the activity, while innocent[,] is a hallmark of drug activity, walking a few minutes behind your mate when leaving a hotel room is not out of the ordinary for travelers, let alone the rest of the population.”
Cf. United States v. Sharpe,
“Mr. [Perez-]Polanco waits behind. He allows Mr. Mathurin to proceed to the vehicle and, upon exiting, does his own surveillance. Again, that is his consciousness of guilt____The innocent traveler does not leave his hotel room and stand for almost a minute just looking around suspiciously as if he knows that he is being watched.... Then he goes to the vehicle that is waiting for him. He walks behind Mr. Mathurin, as if to say, T’m not with this guy. He might be a drug dealer, he just brought drugs to this property, but I’m not with him.’... And then, when they’re in the vehicle, they’re headed directly back for the marina — the location of his yolla ....”
*1209 This parallels Agent Aguilar’s suppression hearing testimony, in which he stated that he found this particular behavior significant, explaining that it “defied common sense” that the two men left the room separately. The Government also argues that because we are examining whether the agents had reasonable suspicion to stop the vehicle in which both Mathurin and PerezPolanco were traveling, we cannot divorce Perez-Polanco’s actions from Mathurin. We agree. Perez-Polanco and Mathurin’s separate exits from the Hotel, coupled with the agents’ perception of Perez-Polanco’s countersurveillance, support the existence of reasonable suspicion.
We agree with Mathurin that each of these factors alone was insufficient to amount to a reasonable suspicion that criminal activity was afoot, and each, with the exception of Perez-Polanco’s criminal record, might indicate wholly innocent behavior. However, Mathurin argues that the factors in this case, even when combined, do not amount to reasonable suspicion becausе they fail to eliminate a substantial portion of innocent travelers. He directs our attention to Karnes, in which we held that
“Reid[v. Georgia,448 U.S. 438 (1980),] and Sokolow, taken together, demonstrate it is not enough that law enforcement officials can articulate reasons why they stopped someone if those reasons are not probative of behavior in which few innocent people would engage — the factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied. This is a totality of the circumstances test.”
Therefore, to rise to a reasonable suspicion, these factors combined must “eliminate a substantial portion of innocent travelers” or describe “behavior in which few innocent people would engage.”
Id.
We must view the factors together, under “the totality of the circumstances,” from the viewpoint of the agents, in assessing whether reasonable suspicion existed “that the particular individual being stopped [wa]s engaged in wrongdoing.”
Cortez,
Additionally, we acknowledge the agents’ experience and training in investigating illegal drug activity in St. Thomas when reviewing the cumulative effect of this information on the agents.
See
Arvizu,
Under the totality of the circumstances, we conclude the factors amount to reasonable suspicion. 6 Although the factors present a close call, when viewed collectively and in light of the agents’ experience and training, they amounted to a particularized and objective basis for suspecting Mathurin and Perez-Polanco of criminal activity when the *1211 agents stopped the 4Runner. Thus, the agents had reasonable suspicion and the stop was therefore a reasonable investigatory stop under the Fourth Amendment.
IV.
For the foregoing reasons, we agree that the District Court properly denied Mathurin’s motion to suppress the cocaine discovered in the 4Runner. We hold that the agents had reasonable suspicion that criminal activity was afoot based on the factors present, when combined under the totality of the circumstances and viewed with deference to the agents’ experience and training, to stop the 4Runner on the evening in question. We will affirm Mathurin’s conviction.
Notes
Marina workers informed the agents that a man named “Francisco Perez” had arrived in the vessel. One agent showed a photograph of Perez-Polanco to the Marina personnel, who they identified as the same man who arrived that morning in the yolla and rented the Marina slip. The boat was registered in Perez-Polanco’s father’s name, Francisco Perez-Santos.
The District Court held that Mathurin’s initial arrest was illegal because the agents lacked probable cause to arrest Mathurin at the time the 4Runner was stopped. Therefore, it suppressed all statements Mathurin made in custody as the fruit of the poisonous tree. It held that the agents performed a legal warrantless search of the 4Runner incident to PerezPolanco’s lawful arrest, which is when they discovered the cocaine in the rear seat.
See New York v.
Belton,
The Fourth Amendment applies in the U.S. Virgin Islands under the Revised Organic Act of 1954.See48U.S.C. § 1561 (“The right to be secure against unreasonable searches and seizures shall not be violated.”).
It appears that the District Court had no reason to know the origin of the tip was the DHS CBP aircraft when it drafted its opinion denying Mathurin’s motion to suppress the cocaine found in the 4Runner, as this information did not surface until Agent Hodge testified at Mathurin’s trial. Indeed, prior to trial, the U.S. Attorney, in her argument and direct examination questions at Mathurin’s suppression motion hearing, consistently refеrred to the source of the tip as “ICE Puerto Rico.”
Agent Aguilar, however, was responding to a question on direct examination by the U.S. Attorney that identified the “sister federal agency” in her question as “ICE Puerto Rico.” This, of course, contrasts with Agent Hodge’s trial testimony indicating that he actually received the call from the DHS CBP aircraft operator. The Government has not directly responded to this apparent factual tension. However, we deem this distinction inapposite because we view CBP, not only ICE Puerto Rico, as a “sister federal agency.”
Though highly factual in nature, we find the Supreme Court’s decision in
Sokolow
analogous.
Cf.