930 F. 2d 30 - United States v. A Ramirez

MEMORANDUM**

We must decide if border patrol agents had a founded suspicion justifying the investigatory stop of the defendant's automobile.

* On January 29, 1990, Border Patrol Agents Christopher Truty and Jose Flores were observing traffic on Interstate 19 from their marked patrol vehicle, parked on the median of the highway near Nogales, Arizona. A black-over-silver Ford Thunderbird, driven by a young Hispanic male, drew their attention. Accordingly, the agents decided to follow the car. As they pulled alongside, the driver of the Thunderbird smiled and smirked at them, atypical of the usual reaction to the agents' presence.

The attention-grabbing behavior of the Thunderbird driver led the agents to believe that the car did not contain contraband, but that the car might be a "decoy" vehicle. The Thunderbird was tailgating a red Geo Metro; the agents suspected that the Geo might be the car carrying contraband. However, when the agents pulled alongside the Geo, they discovered that the occupants were older individuals that did not act suspiciously.

The agents pulled in behind the Geo and waited for the Thunderbird to catch up with them. The Thunderbird passed the agents' car, the driver again smiling and smirking. The agents' belief that the Thunderbird was a decoy vehicle so reinforced, they continued their search for the contraband-laden vehicle. Three or four vehicles passed the agents; of these, only the occupants of a green Chevrolet Impala did not look at the Border Patrol agents. As the Impala passed the Thunderbird, the driver of the Thunderbird did not look at the Impala, even though he had looked at every other car that had passed him. The agents ran a registration check on the Impala, learning that the car was registered to an address in Nogales, Sonora, Mexico.

The Border Patrol agents pulled in behind the Impala to initiate an investigatory stop. However, before they could activate their emergency lights, the Thunderbird pulled up beside the agents, the driver continuing to smile and smirk at the agents. The Thunderbird driver then "punched" the accelerator and sped away in an apparent attempt to distract the agents' attention from the Impala.

The antics of the Thunderbird driver further reinforced the agents' belief that the Thunderbird was the decoy and heightened their suspicion that the Impala was the load car. The agents proceeded to stop the Impala. Upon request, the driver of the Impala provided his identification card to the agents. The driver, Carlos Ramirez, was the same person listed as the registered owner of the Thunderbird. The agents searched the Impala, uncovering approximately 150 pounds of marijuana.

Ramirez was charged in a two-count indictment with possession with intent to distribute between 50 and 100 kilograms of marijuana, and conspiracy to distribute the same amount of marijuana. Ramirez moved to suppress the evidence discovered in the Impala, alleging the investigatory stop of the car was unconstitutional. The district court denied the motion. Thereafter, Ramirez pled guilty to the possession count, conditioned upon his right to appeal the denial of the motion to suppress. As part of a plea agreement, the conspiracy count was dismissed. This appeal followed.

Brief investigatory stops by law enforcement officers, such as occurred here, are not immune from the strictures of the fourth amendment. See United States v. Cortez, 449 U.S. 411, 417 (1981). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." Id. (footnote omitted). While this determination is based upon the totality of the circumstances, the officer's conclusion must "raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Id. at 418 (emphasis added).

The two leading cases applying these principles in this circuit are United States v. Robert L., 874 F.2d 701 (9th Cir.1989) and United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir.1989). Under the rationale of these cases, Ramirez reasons that the search in the present case was unconstitutional.

In Robert L., Agent Truty was directing traffic at an accident scene near Nogales, Arizona, when he noticed Robert L.'s car. Agent Truty pursued Robert L.'s vehicle; Robert L. stopped voluntarily. In the car the agents discovered 109 pounds of marijuana. Later, Agent Truty offered the following circumstances justifying the stop and search of Robert L.'s automobile: (1) Robert L.'s eye contact with the police at the accident site; (2) Robert L.'s erratic driving; (3) driving in tandem with another vehicle; (4) the size of trunk of his car; (5) his youthful appearance; and (6) the fact that a juvenile was driving during school hours.

The court found that these circumstances did not give rise to a reasonable suspicion. Id. at 705. Only Robert L.'s apparent youth and the size of the trunk "could even arguably have contributed to a reasonable suspicion." Id. The other factors were not irrelevant; they simply were not supported by the record, or were too innocuous to constitute "suspicious" activity. Id. at 703-05.

In Hernandez-Alvarado, Agent Truty was conducting surveillance of traffic on Interstate 19 near Nogales, Arizona, when he observed Hernandez-Alvarado's beige Oldsmobile. Truty initiated an investigatory stop of the vehicle, finding approximately 258 pounds of marijuana in the vehicle's trunk. At the hearing to suppress the evidence, Truty identified the following circumstances as giving rise to his suspicion: (1) the nervous demeanor of both Hernandez-Alvarado and his passengers as they sat in the vehicle; (2) a reduction in speed from 65 to 55 mph; (3) the presence of a two-way antenna on the trunk of the vehicle; (4) Hernandez-Alvarado's residence in a neighborhood on the U.S.-Mexico border where narcotics investigations were ongoing; (5) the license plate bracket indicating that the car had been purchased from a dealership associated with drug trafficking; and (6) the size of the vehicle's trunk. Hernandez-Alvarado, 891 F.2d at 1418.

As in Robert L., we found these factors insufficient to justify an investigatory stop. "While [the factors] may allow certain inferences to be drawn, they describe too many individuals to create a reasonable suspicion that this particular defendant is engaged in criminal activity." Id. at 1418-19. "[M]any law-abiding motorists have two-way antennas installed on their cars, live near the Mexican border, and reduce their speed on the freeway when being followed by a law enforcement vehicle." Id. at 1419.

The present case differs markedly from either Robert L. or Hernandez-Alvarado. Here, there are two factors not present in either Robert L. or Hernandez-Alvarado--(1) the presence of a decoy vehicle, and (2) actions suggesting a relationship between the decoy vehicle and appellant's automobile. Thus, we must decide if it was reasonable for the Border Patrol agents to suspect that the Thunderbird was a decoy vehicle. If so, we must then determine if it was reasonable for the agents to suspect that the Impala was a contraband-laden vehicle. If the answers to these two interrelated questions are in the affirmative, then the agents' investigatory stop was not constitutionally infirm.

With respect to the Thunderbird, it was reasonable for the agents to believe that the vehicle might be a decoy vehicle. The vehicle was flashy, occupied only by the driver, a young male. Moreover, the driver repeatedly attempted to attract the agents' attention with his smiling and smirking. And most significantly, the Thunderbird made its most notable attempts to divert the agents' attention when the agents began to focus on the suspected contraband-laden car.

This latter factor also supports the agents' belief that the Impala was the contraband-laden vehicle. Once the agents had decided that the Thunderbird was a decoy vehicle, the universe of possible contraband-laden vehicles was shrunk to those in close vicinity to the decoy vehicle. From this small subset, it was reasonable to believe that the Impala was the contraband-laden vehicle. The automobile had a large trunk. The driver of the Impala made no eye contact with the agents, unlike the drivers of each of the other automobiles in the vicinity. Likewise, the driver of the Thunderbird ignored the Impala, whereas he looked at all other vehicles. Finally, and again most significantly, the agents' tail of the Impala provoked a significant attempt by the Thunderbird driver to distract the agents' attention.

Thus, a review of the totality of the circumstances reveals that the agents' suspicion of the Impala was reasonable. The district court did not err in denying Ramirez's motion to suppress.

AFFIRMED.