United States v. Omar Hernandez ( 2019 )

NOT FOR PUBLICATION FILED
NOV 12 2019
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50305
Plaintiff-Appellee, D.C. No.
5:17-cr-00166-PSG-1
v.
OMAR ERNESTO HERNANDEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Phillip S. Gutierrez, District Judge, Presiding
Argued and Submitted October 23, 2019
Pasadena, California
Before: KLEINFELD and CALLAHAN, Circuit Judges, and RESTANI,** Judge.
Omar Ernesto Hernandez (“Hernandez”), a citizen of the United States, was
convicted on three counts of transporting or moving three unlawfully-present
Mexican nationals, in contravention of 8 U.S.C. § 1324(a)(1)(A)(ii). He was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
arrested after two U.S. Border Patrol agents stopped his vehicle approximately 70
miles north of the U.S.-Mexico border near Murrieta, California. Hernandez appeals
the district court’s denial of his motion to suppress the stop for lack of reasonable
suspicion. We affirm.
The Court reviews the denial of a motion to suppress de novo. United States
v. Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013) (en banc). Reasonable
suspicion determinations present mixed questions of law and fact, which the Court
also reviews de novo. United States v. Burkett, 612 F.3d 1103, 1106 (9th Cir. 2010).
Border Patrol agents may perform “brief investigatory stops” near an international
border if they have a “reasonable suspicion to believe that criminal activity may be
afoot.” United States v. Raygoza-Garcia, 902 F.3d 994, 999 (9th Cir. 2018) (citing
United States v. Arvizu, 534 U.S. 266, 278 (2002) (Scalia, J., concurring)).
“Reasonable suspicion is defined as a particularized and objective basis for
suspecting the particular person stopped of a criminal activity.” Id. at 999–1000
(citation and quotation omitted). We evaluate “the totality of the circumstances”
known to the Border Patrol agents at the time of the stop. See Valdes-Vega, 738
F.3d at 1079.
Preliminarily, we conclude that Hernandez preserved his legal arguments for
our review, and the district court did not clearly err as to its factual findings. In
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making the stop, the Border Patrol agents relied in part upon a text-based alert from
an internal Border Patrol system, which advised them that Hernandez’s vehicle was
suspected of involvement in human smuggling. The agents then entered two queries
in the TECS Alert System, an internal Customs & Border Protection database that
includes certain information about, inter alia, suspicious persons and property who
enter the United States. The queries revealed that the vehicle at issue, which was
registered to Hernandez, crossed into the United States 100 miles away and five
hours earlier, that Hernandez was alone at the time (although now he had three
passengers), and that Hernandez and the vehicle were the subject of ongoing human
smuggling investigations.
We have held previously that the existence of an active TECS alert at a port
of entry, coupled with other indicia of criminality, may give rise to a reasonable
suspicion that warrants referral to secondary inspection. See United States v.
Cotterman, 709 F.3d 952, 968–69 (9th Cir. 2013) (en banc). While the TECS reports
here revealed only ongoing investigations, not convictions, they also revealed facts
about the time of entry and occupancy of the vehicle. Combined with the extended
time taken to reach the point of interception on the interstate highway, a known route
for smuggling, and abnormally slow and slightly weaving driving behavior, the
reasonable suspicion standard was met. In reviewing reasonable suspicion
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determinations, courts do not “nitpick the factors in isolation.” Id. at 970. Instead,
courts defer to the officers’ sound, reasoned inferences based upon the cumulative,
reliable information available to them at the time of the stop. Valdes-Vega, 738 F.3d
at 1078.
AFFIRMED.
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