United States v. Al Nasser ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v. No. 05-10466
KARIM HUSSEIN AL NASSER, aka  D.C. No.
CR-03-01122-NVW
Karim Hussein Al-Nasser, Karim
H. AlNasser, Kram Nseelt, Karim OPINION
H. Alaassar,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
April 3, 2006—San Francisco, California
Filed March 20, 2007
Before: Warren J. Ferguson, Stephen S. Trott, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Kleinfeld;
Dissent by Judge Ferguson
3305
3308 UNITED STATES v. AL NASSER
COUNSEL
James Sun Park, Park Law Office, PLC, Phoenix, Arizona, for
the appellant.
Gary M. Restaino, Assistant U. S. Attorney, Phoenix, Ari-
zona, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
This case raises issues regarding a vehicle stop and sen-
tencing. We affirm.
UNITED STATES v. AL NASSER 3309
FACTS
A Border Patrol agent was patrolling a stretch of highway
running north from the Mexican border in Arizona through an
Indian reservation, the Tohono O’odham Nation. He spotted
a pickup truck around nine at night that he suspected was car-
rying illegal aliens, and stopped it. It turned out that there
were no illegal aliens in the truck, but there was alcohol,
which was illegal on that part of the reservation. The Border
Patrol agent called a tribal officer to come over and take
charge of the violators. The other Border Patrol agent on the
stretch of highway came over too.
Meanwhile, a sedan drove toward the area where the
pickup truck and two Border Patrol vehicles were stopped.
When the Border Patrol agent shined his flashlight at it so he
would be seen, despite the darkness and his dark clothing, he
saw people hiding in the back seat (he is six feet nine inches
tall, and has a good view down toward the floor when a small
sedan passes him and he shines his flashlight in). So the Bor-
der Patrol agent told the driver to stop the sedan and directed
the driver to pull over with hand gestures. After the sedan
stopped, the agent took the keys, and determined that this sec-
ond stop did indeed produce illegal aliens.
While the three law enforcement vehicles, with two light
bars flashing, and the two stopped vehicles were still there, Al
Nasser drove up. The tall Border Patrol agent again shined his
flashlight so he would be seen and not hit, and again saw peo-
ple hiding on the floor behind the front seat. He thought this
car probably had illegal aliens in it, and said so to his col-
league, but chose not to stop it because they already had their
hands full. The Border Patrol agents were still busy process-
ing the illegal aliens in the sedan, and the tribal officer was
still processing the people with alcohol in the pickup truck.
But Al Nasser stopped anyway. It is understandable that he
did, since there were now five vehicles pulled to the side of
3310 UNITED STATES v. AL NASSER
the road, two or three with flashing lights, more or less block-
ing the northbound lane. But no one told him or signaled him
to stop. (There is some dispute about this, addressed below.)
The Border Patrol agents were just too busy for another carful
of illegal aliens and were going to let this one go to avoid the
safety problem of having to control so many people.
The Border Patrol agent spoke to Al Nasser in Spanish,
assuming he was Mexican, but it turned out that Al Nasser
was Iraqi and could not understand Spanish. It also turned out
that the people hiding on the floor had paid coyotes in Mexico
$1,000 and $1,200 respectively to be smuggled into the
United States. After Al-Nasser stopped in the middle of the
road, one of the Border Patrol agents came over and took his
keys, and the illegal aliens in the car were apprehended.
Al Nasser was convicted of knowingly transporting an ille-
gal alien,1 but the jury answered “No” to the special interroga-
tory, “Did defendant transport illegal aliens for the purpose of
commercial advantage or private financial gain?” His motion
to suppress the fruits of what he claimed was an illegal stop
of his car had been denied on the ground that there was no
stop.
Analysis
Al Nasser argues that the evidence from the stop and search
of his car (statements made by the illegal aliens) should have
been suppressed for lack of reasonable suspicion for the stop,
and that his sentence was unreasonable and incorrectly denied
him a Guidelines adjustment.
I. The stop.
For the Border Patrol to need any quantum of suspicion to
1
8 U.S.C. § 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i).
UNITED STATES v. AL NASSER 3311
stop Al Nasser, there would have to be a stop.2 The district
court, after an evidentiary hearing, concluded that the Border
Patrol did not stop Al Nasser, but rather that he voluntarily
stopped of his own accord. We are bound by the district
court’s findings of fact unless they are clearly erroneous,3 and
we review de novo whether on those facts there was what
amounted legally to a stop.4
At the evidentiary hearing, the two Border Patrol agents
testified that they did nothing to stop Al Nasser. As for why
not, the answer was plain:
A. As he was passing by, I was thinking, “There
goes another load of illegal aliens.”
Q. So why not stop him?
A. We already had two vehicles stopped there, one
with illegal aliens, and I felt that was more than we
could safely control at the time.
The tribal police officer was facing the other way, but thought
he heard one of the Border Patrol agents holler toward the
vehicle to stop. That testimony established an issue of fact as
to whether the Border Patrol agents did or did not tell Al Nas-
ser to stop.
What was especially interesting in the suppression hearing
on this issue was Al Nasser’s testimony. One would think that
if his case was that he was stopped illegally, his attorney
would have him testify that he stopped because he was told
2
See Terry v. Ohio, 392 U.S. 1, 16-17 (1968); United States v. Judge,
501 F.2d 1348, 1349 (9th Cir. 1974).
3
See United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir. 2001);
United States v. Kerr, 817 F.2d 1384 1386 (9th Cir. 1987).
4
See United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000);
United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994).
3312 UNITED STATES v. AL NASSER
to stop or signaled to stop. But he did not so testify. He was
not asked why he stopped, and he did not say why he stopped.
The district court order denying the motion to suppress
acknowledges that the defense raised questions about the
credibility of the Border Patrol agents’ testimony. And the
order resolved those questions in favor of the agents. The
court found that the officers did not bring about Al Nasser’s
decision to stop.
[1] Al Nasser argues that the district court’s finding was
clearly erroneous because it was contrary to the tribal offi-
cer’s testimony. That argument is unpersuasive, because (1)
the district court had to choose between the Border Patrol
agents’ testimony and the tribal officer’s testimony, neither
being implausible,5 and (2) one would think Al Nasser, at
least, would have testified that he stopped because he was told
or signaled to stop, if that were so.
[2] Al Nasser also argues that the Border Patrol agents
could reasonably expect a motorist to stop regardless of
whether they intended or commanded him to. That is not to
the point. He may well be right that a reasonable motorist
would likely stop or go very slowly if one lane was blocked
by five stopped vehicles, two with police lights flashing, but
that does not mean that the reasonable motorist would think
the police were stopping him. More likely, he would want to
assure himself that it was safe to go on instead of speeding
past all the stopped vehicles into whatever might have
brought it about — perhaps a wreck, dead animal, or injured
or dead person in the road.
[3] Al Nasser argues that the police should be treated as
having stopped someone if they could reasonably anticipate
5
See United States v. Elliot, 322 F.3d 710, 714 (9th Cir. 2003) (“Where
there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.”).
UNITED STATES v. AL NASSER 3313
that someone would stop, but cites no case that so holds. The
Fourth Amendment protects people against “seizures,”6 which
is to say, government action seizing them. We held decades
ago, in United States v. Judge, that when a driver stops his
vehicle voluntarily and the police officer does not order or
request him to stop, there is no stop for Fourth Amendment
purposes and thus no requirement of any quantum of suspicion.7
Nothing since has changed this proposition.
[4] The Supreme Court held, in United States v. Menden-
hall, that “[a] person is seized only when, by means of physi-
cal force or a show of authority, his freedom of movement is
restrained.”8 The Court held, in Florida v. Bostick, that even
though a passenger on a bus about to depart would not feel
free to leave when the police came aboard, that was because
he wanted to take the bus, and “says nothing about whether
or not the police conduct at issue was coercive.”9 We held, in
United States v. Kerr, that blocking a vehicle that is backing
out of a driveway is a stop,10 but we held, in United States v.
Kim, that approaching the driver of an already voluntarily
stopped vehicle is not, even where the police partially blocked
the car’s path of possible movement.11 And in United States
v. Chan-Jimenez, when a driver followed by a suspicious
policeman pulled over and stopped, we did not treat the driv-
er’s voluntary stop as requiring reasonable suspicion.12
Rather, we concluded that the stop was the policeman’s keep-
ing the driver’s license and registration and keeping his hand
on his gun.13 We used the active voice regarding the police-
6
See Terry v. Ohio, 392 U.S. 1, 16-17 (1968).
7
United States v. Judge, 501 F.2d 1348, 1349 (9th Cir. 1974).
8
United States v. Mendenhall, 446 U.S. 544, 553 (1980).
9
Fla. v. Bostick, 501 U.S. 429, 437 (1991).
10
United States v. Kerr, 817 F.2d 1384 1386-87 (9th Cir. 1987).
11
United States v. Kim, 25 F.3d 1426, 1428, 1430-31 (9th Cir. 1994).
12
See United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.
1997).
13
See id. (“We find that Chan-Jimenez was seized within the meaning
of the Fourth Amendment when Officer Price obtained and failed to return
his driver’s license and registration, and proceeded with an investiga-
tion.”) (emphasis added).
3314 UNITED STATES v. AL NASSER
man’s conduct, holding not that a stop occurred when a rea-
sonable driver would feel that he ought to stop, but rather
“when a law enforcement officer, by means of physical force
or a show of authority, in some way restrains the liberty of a
citizen.”14 That is consistent with Bostick, which focuses on
whether the police conduct was coercive.15
[5] The Border Patrol officers did not restrain or try to
restrain Al Nasser’s liberty. He stopped despite their decision
to let him pass because their hands were full. Like the bus
rider in Bostick, Al Nasser’s freedom of movement may have
been restrained, but was not restrained by police efforts to
restrain it. The district court correctly denied the motion to
suppress because there was no stop for purposes of Fourth
Amendment analysis.
II. Sentencing.
We review the district court’s interpretation of the Sentenc-
ing Guidelines de novo and its factual findings for clear error.16
And we review the ultimate sentence for “reasonableness.”17
Al Nasser sought a three level downward adjustment in his
guideline calculation, because the jury had answered “No” to
the interrogatory asking whether he transported the illegal
aliens in his car “for the purpose of commercial advantage or
private financial gain.” The district court denied him the
adjustment, despite the absence of evidence that he received
any money, because the evidence showed that the aliens had
paid $1,000 and $1,200 respectively to a coyote for the trans-
portation. The court found that “this was not an unwise, gen-
erous picking up of hitchhikers[,]” that Al Nasser “knew it
was an organized activity involving commercial — commer-
14
Id. (citing Florida v. Bostick, 501 U.S. 429, 434 (1991)).
15
Fla. v. Bostick, 501 U.S. 429, 434-35 (1991).
16
United States v. Kimbrew, 406 F.3d 1149, 1151-52 (9th Cir. 2005).
17
United States v. Booker, 543 U.S. 220, 261-62 (2005).
UNITED STATES v. AL NASSER 3315
cial is the wrong word — financial gain[,]” and that Al Nas-
ser’s account of how he happened to be there with the illegal
aliens was “not worthy of belief.”
[6] The Guidelines provide for a three level downward
adjustment if the “offense was committed other than for
profit, or the offense involved the . . . transporting only of the
defendant’s spouse or child . . . .”18 The relevant Application
Note says that the nonprofit phrase in the Guideline means
“there was no payment or expectation of payment for the
smuggling, transporting or harboring . . . .”19 The Guideline
formerly provided the adjustment where “the defendant com-
mitted the offense other than for profit,” but it was amended
in 1997 to say “the offense was committed other than for
profit” in order “to narrow somewhat the class of cases that
would qualify for the reduced offense level.”20
18
United States Sentencing Guideline § 2L1.1(b)(1) provides: “If (A)
the offense was committed other than for profit, or the offense involved
the smuggling, transporting, or harboring only of the defendant’s spouse
or child (or both the defendant’s spouse and child), and (B) the base
offense level is determined under subsection (a)(2), decrease by 3 levels.”
U.S.S.G. § 2L1.1(b)(1) (2003).
19
Application Note 1 of § 2L1.1(b)(1) provides, in pertinent part: “For
purposes of this guideline - ‘The offense was committed other than for
profit’ means that there was no payment or expectation of payment for the
smuggling, transporting, or harboring of any of the unlawful aliens.”
U.S.S.G. § 2L1.1(b)(1), Application Note 1 (2003).
20
United States Sentencing Guideline Amendment 561 provides: “Sec-
tion 2L1.1 is repromulgated with the following changes:
Section 2L1.1(b)(1)(A) is amended by deleting ‘the defendant
committed the offense’ and inserting in lieu thereof ‘the offense
was committed’.
The Commentary to § 2L1.1 captioned “Application Notes” is
amended in Note 1 by deleting:
“ ‘The defendant committed the offense other than for profit’
means that there was no expectation of payment for the
smuggling transportation or harboring of any of the unlawful
aliens. The ‘number of unlawful aliens smuggled transported
or harbored’ does not include the defendant.”
3316 UNITED STATES v. AL NASSER
[7] The offense was committed October 5, 2003, long after
the narrower guideline went into effect. Under the 2003
guidelines applicable at sentencing, it did not matter whether
Al Nasser got paid, or even expected payment, because the
court did not find that the crime was committed other than for
profit. Al Nasser was part of a scheme to transport the aliens
for money, whether he personally received any of the money
or not. An “offense was committed other than for profit” only
if the offense itself was committed other than for profit,
regardless of whether the particular defendant got or expected
to get any of the money.
[8] The district court took account of United States v.
Booker,21 and although we had not yet issued our en banc
and inserting in lieu thereof:
“ ‘The offense was committed other than for profit’ means
that there was no expectation of payment for the smuggling
transportation or harboring of any of the unlawful aliens.
‘Number of unlawful aliens smuggled transported or har-
bored’ does not include the defendant.”
Section 5K2.0 is amended in the third paragraph by deleting
‘immigration violations’ and inserting in lieu thereof ‘other
guidelines’; and by deleting ‘for an immigration violation’ and
inserting in lieu thereof ‘under one of these other guidelines’.
Reason for Amendment: This amendment implements section
203 of the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, Pub. L. 104-208, 110 Stat. 3009, which directs
the Commission to amend the guidelines for offenses related to
smuggling, transporting, or harboring illegal aliens. Pursuant to
the emergency amendment authority of that Act, this amendment
previously was promulgated as a temporary measure effective
May 1, 1997. This version of the amendment changes
§ 2L1.1(b)(1)(A)(pertaining to a reduction for non-profit
offenses) to narrow somewhat the class of cases that would qual-
ify for the reduced offense level under that provision. This
amendment also makes a conforming change to § 5K2.0.
21
United States v. Booker, 543 U.S. 220 (2005).
UNITED STATES v. AL NASSER 3317
decision in Ameline,22 the district court anticipated it by
expressly considering the reasonableness of the sentence in
light of all the factors in 18 U.S.C. § 3553 and expressly
acknowledging that the court was not bound by the guide-
lines. Al Nasser argues that the fifteen month sentence was
unreasonable because he was going to remain law abiding
subsequently and the judge did not consider the immigration
consequences. But the judge expressly did consider the immi-
gration consequences and decided not to reduce the sentence
further, despite whatever those consequences might be. There
is no basis for characterizing the judge’s exercise of sentenc-
ing discretion, or the sentence itself, as unreasonably harsh.
AFFIRMED.
FERGUSON, Circuit Judge, dissenting:
I agree with the majority concerning the general rule that
a “person is seized only when, by means of physical force or
a show of authority, his freedom of movement is restrained,”
maj. op. at 3313 (quoting United States v. Mendall, 446 U.S.
544, 553 (1980)); see also Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968), but I disagree with its decision that Al Nasser’s move-
ment was not so restrained. “[T]aking into account all of the
circumstances surrounding the encounter” in this case, “the
police conduct would have communicated to a reasonable per-
son that he was not at liberty to ignore the police presence and
go about his business.” Florida v. Bostick, 501 U.S. 429, 437
(1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569
(1988)) (internal punctuation omitted). The majority’s conclu-
sion to the contrary is illogical and contravenes both Supreme
Court and Ninth Circuit precedent.
22
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
3318 UNITED STATES v. AL NASSER
I.
On the night of October 4, 2003, uniformed Border Patrol
Agents Cortright and Spivey were patrolling a stretch of Fed-
eral Route 15 (“Route 15”), a two-lane highway that runs
through Arizona and the Tohono O’odham Nation. That eve-
ning, Agents Cortright and Spivey, along with Police Officer
Lopez, pulled over two vehicles on suspicion of transporting
undocumented immigrants. While questioning and arresting
the occupants, the officers blocked traffic on the northbound
lane of Route 15.
Driving north on this stretch of highway, Karim Hussein Al
Nasser (“Al Nasser”) drove up to the arrest scene. Three
marked police cars were in the road, at least two with acti-
vated flashing lights. The two stopped civilian vehicles were
also detained and blocking traffic, and their occupants were
being arrested. Uniformed Border Patrol Agent Cortright
stood in the northbound lane, facing Al Nasser’s oncoming
vehicle.
Border Patrol Agent Cortright shone his “stinger” flashlight
into the front of Al Nasser’s car, allegedly to alert Al Nasser
to the agent’s presence. Al Nasser slowed and then moved to
the southbound lane in order to pass. As Al Nasser began to
drive by at a slow speed, the uniformed agent followed the car
with his stinger, shining it directly into the passenger window
of Al Nasser’s vehicle as it passed and continued forward. In
Agent Cortright’s own words, he shone the beam of the
stinger “before, during, and after . . . the vehicle as it passed.”1
1
There is some dispute as to whether the officers made verbal orders or
other additional gestures. Officer Lopez testified at the suppression hear-
ing that Al Nasser was ordered to “stop,” but the court below did not
credit the officer’s testimony. I harbor serious doubts about the accuracy
of the factual findings of the court below, but for purposes of this dissent
I accept those findings as true. My position remains the same in either
case.
UNITED STATES v. AL NASSER 3319
Al Nasser then came to a complete stop in the middle of the
two-lane highway, approximately fifteen feet past the Border
Patrol agent. Agents Cortright and Spivey ran to the car, and
Agent Spivey yanked the keys out of the ignition. The officers
then proceeded to question and arrest Al Nasser and all other
occupants of his vehicle.
II.
While a voluntary exchange between the police and a mem-
ber of the public will not trigger the protections of the Fourth
Amendment, an officer may not temporarily detain an indi-
vidual for investigative purposes without “reasonable suspi-
cion based on articulable facts.” United States v. Kerr, 817
F.2d 1384, 1386 (9th Cir. 1987). Further, as the Supreme
Court explained in Mendenhall, 446 U.S. at 556-57, “stopping
or diverting an automobile in transit, with the attendant oppor-
tunity for a visual inspection of the areas of the passenger
compartment not otherwise observable, is materially more
intrusive than a question put to a passing pedestrian.” The
Court specifically recognized “the fact that the former
amounts to a seizure.” Id. at 557.
In Kerr, the Ninth Circuit confronted “the unusual problem
of characterizing an automobile stop as either a voluntary
encounter or an investigative stop.” Id. at 1386. As we
explained in that case, whether an auto stop has occurred is
generally undisputed. Id. “The vast majority of automobile
stops are initiated by police officers using flashing lights or a
siren and are clearly fourth amendment seizures.” Id. In Kerr,
no lights were used, but the police officer drove into a one-
lane driveway, thereby blocking the path of the defendant,
who had been driving out. Id. at 1385. We ruled that such
police conduct constituted an investigative stop, because the
police officer’s “authority and conduct provided Kerr with no
reasonable alternative except an encounter with the police.”
Id. at 1387.
3320 UNITED STATES v. AL NASSER
Al Nasser, too, adopted the only reasonable course of
action, given that police vehicles with flashing lights blocked
the road and, when Al Nasser attempted to circumnavigate the
scene, an officer beamed his flashlight directly into the pas-
senger compartment of Al Nasser’s car. Just as in Kerr, the
police “conduct [ ] precipitated the confrontation” and Al
Nasser “could reasonably [have] conclude[d]” that the offi-
cers’ actions were “directed at intercepting him.” Id. at 1387.
It was precisely on the basis of such circumstances that we
ruled in Kerr that an investigative stop had occurred. Id. at
1386-87.2
Similarly, we previously held that a stop occurred where a
uniformed officer driving a marked police car approached a
vehicle and the defendant’s “decision to stop was sufficiently
influenced by the official appearance and conduct of the [law
enforcement] agents.” United States v. Torres-Urena, 513
F.2d 540, 541 n.1 (9th Cir. 1975). In Torres-Urena, the offi-
cer testified, “he stopped for us when he saw the uniforms.”
Id. Likewise, Al Nasser stopped for Agent Cortright when the
uniformed patrol agent directed his flashlight into Al Nasser’s
moving car.
The Supreme Court has repeatedly identified the “crucial
test” for whether an investigatory stop has occurred as
whether a reasonable person in the defendant’s position
“would [have felt] at liberty to ignore the police presence and
go about his business.” Bostick, 501 U.S. at 437 (quotation
and internal punctuation omitted). When Al Nasser drove up
in the darkness, he saw police lights flashing, three marked
police cars, two detained civilian vehicles, and a uniformed
officer standing in his lane. He could have reasonably
believed that all drivers were required to pull over for an
administrative checkpoint of some kind. Moreover, when he
attempted to continue past this roadblock, Agent Cortright
2
The majority readily acknowledges the eminent reasonableness of Al
Nasser’s conduct yet finds no stop occurred. See maj. op. at 3309, 3312.
UNITED STATES v. AL NASSER 3321
continued to shine his stinger directly into the passenger com-
partment of Al Nasser’s car. It is completely reasonable for a
driver to interpret this gesture as an attempt to get his atten-
tion and initiate an investigatory stop.
An auto stop is different from a pedestrian stop, partly
because of the additional intrusion noted in Mendenhall, 446
U.S. at 556-57, but also because of the difference in the chan-
nels of communication. Given that the uniformed officer in
this case was on foot and not inside a police car, the use of
his flashlight was the most effective, if not the only, means of
communicating his authority; Al Nasser reasonably recog-
nized that fact. A driver must read and respond to police sig-
nals more ambiguous than those received by a pedestrian,
who is typically asked questions by an officer within normal
hearing range. Given the additional dangers inherent in driv-
ing while managing distractions from the road, a driver can
easily be coerced to stop when the police are already blocking
the only available lane of traffic.
“[T]aking into account all of the circumstances surrounding
[Al Nasser’s] encounter” with uniformed law enforcement
officials on Route 15, “the police conduct would have com-
municated to a reasonable person that he was not at liberty to
ignore the police presence and go about his business.” Bost-
ick, 501 U.S. at 437 (quotation and internal punctuation omit-
ted).
III.
None of the cases cited by the majority support its position.
In United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th
Cir. 1997) (quoting Bostick, 501 U.S. at 437) (internal punctu-
ation omitted), the Ninth Circuit reiterated the rule that a “po-
lice officer has restrained the liberty of a citizen if, taking into
account all of the circumstances surrounding the encounter,
the police conduct would have communicated to a reasonable
person that he was not at liberty to ignore the police presence
3322 UNITED STATES v. AL NASSER
and go about his business.” Chan-Jimenez held that the defen-
dant was seized within the meaning of the Fourth Amendment
when the officer obtained and failed to return the defendant’s
license and registration. Id. The initial stop of the defendant’s
vehicle did not constitute an investigatory stop only because
the defendant had chosen to pull over to examine a mechani-
cal problem with his vehicle. Id. When the officer approached
on foot, the car was already stopped at the side of the road,
and the hood of the truck was propped open. Id.
Similarly, in United States v. Kim, 25 F.3d 1426, 1430 (9th
Cir. 1994), the police officer approached a car already parked
in a parking lot. The officer was not in uniform, and he never
activated the flashing lights on top of his car, nor did he uti-
lize a flashlight. Id. at 1430 n.1. Also, in United States v.
Judge, 501 F.2d 1348, 1349 (9th Cir. 1974), decided just one
year before Torres-Urena, the police officer approached an
individual exiting a parked vehicle that was already stationary
in a parking lot.
None of these cases concerned the question of whether the
stop of a moving vehicle was investigatory or voluntary. In
contrast to the defendants in Chan-Jimenez, Kim, and Judge,
all of whom were approached after they had brought their cars
to complete stops, parked them in appropriate and safe loca-
tions, and turned off their ignitions,3 Al Nasser’s vehicle was
in motion, and he was actively driving along a highway when
Border Patrol Agent Cortright signaled with his flashlight,
and Al Nasser then responded by halting in the middle of the
road. Al Nasser halted directly in the middle of the highway,
several paces past Agent Cortright and the other cars. Con-
trary to the assertion of the majority, this cannot logically be
interpreted as a move a driver would make voluntarily, simply
3
The engine was running in Chan-Jimenez, 125 F.3d at 1326, only
because necessary for the owner to investigate the vehicle’s mechanical
problems while he looked under the car’s hood.
UNITED STATES v. AL NASSER 3323
to “assure himself that it was safe to go on instead of speeding
past all the stopped vehicles.” Maj. op. at 3312.
IV.
Because the majority’s decision contradicts both logic and
clear precedent, I respectfully dissent. In my view, Al Nas-
ser’s conviction and sentence should be vacated, and his case
should be remanded for the lower court to determine whether
the officers had reasonable suspicion based on articulable
facts at the time they stopped his vehicle. I therefore would
not reach the sentencing issues addressed in Part II of the
majority opinion.