United States v. Jesus E. Cortez, A/K/A Jesus E. Cortez-Espinoza, United States of America v. Pedro Hernandez-Loera ( 1979 )

HUG, Circuit Judge:

Jesus E. Cortez-Espinoza (Cortez) and Pedro Hernandez-Loera (Hernandez) appeal from convictions for knowing transportation of illegal aliens, 8 U.S.C. § 1324(a)(2), contending that the evidence used against them was the product of an illegal vehicle stop by border patrol officers and should have been suppressed. We agree and therefore reverse.

In late December, 1976, border patrol officers found, in the southern Arizona desert, human tracks suggesting that a man, wearing shoes bearing a distinctive “chevron” sole pattern, was engaged in the practice of leading aliens illegally into the United States. The officers inferred from a study of the tracks that “Chevron”, as they called him, led groups of from about eight to twenty aliens across the United States-Mexican border at night, on a journey of approximately twenty-five miles on foot to a point on Highway 86 near Sells, Arizona. Highway 86 runs generally east and west between Ajo, Arizona and Tucson. The tracks stopped at the highway and did not reappear anywhere nearby, which suggested to the officers that a vehicle had picked up the aliens. The officers’ studies further indicated that Chevron led his groups into Arizona on Friday, Saturday, Sunday or Monday nights, but whether he led groups every weekend they did not know. No one had actually seen Chevron or one of his groups in transit. The latest set of tracks located before the night of the instant arrest was made on the night of Saturday, January 15-16, 1977.

On the Sunday night of January 30-31, 1977, officers Gray and Evans of the border patrol were on duty in the general area. They “felt” that Chevron would lead a new group that night. It was a hunch, because they had no reason to believe that Chevron operated every weekend, and there was no reason why the expedition could not have occurred on the following night.

The officers did not set up an observation point in the vicinity of the chevron tracks but instead, at about 1:00 A.M., Gray and Evans parked their patrol car about one hundred feet off the highway at a point some twenty-seven miles to the east of the place where the chevron tracks had disappeared in the past. They selected this location because they were primarily responsible for watching the Altar Valley area, where a small road joined the highway, but they believed they could also watch for Chevron’s vehicle there.

Gray and Evans decided that in watching for Chevron’s vehicle, they would limit their attention to certain kinds of vehicles, and within that class of vehicles, only to those vehicles which passed them travelling westward and returned approximately ninety minutes later, travelling eastward. The class included vans, campers and pickup trucks that could easily hide eight to twenty aliens without drawing attention from any law enforcement authority. The class did not include commercial-looking trucks, nor did it include station wagons or sedans, although the officers knew of the practice of secreting as many as eight aliens in the trunks or rear compartments of these vehicles.

The officers also admitted that they had no reason to know that the vehicle assisting Chevron would approach from, and return to, the east rather than the west. They did not explain why such a vehicle could not approach the pick-up point from one direction and then continue in the same direction. They admitted that if Chevron had led a group across the border before dark that afternoon, he and his group could have been picked up and transported eastward, past the Gray-Evans checkpoint, before the two officers parked there at 1:00 A.M. They admitted that a vehicle could have passed them, gone to Sells, a town west of the chevron tracks, for legitimate purposes and returned within the ninety-minute time frame they established.

Gray and Evans saw two vehicles in this “profile” class, both campers, travelling westward that night. Shortly after 6:00 A.M., one of the two returned, heading east. As the vehicle went by, the officers did not see anyone in the camper, and on neither occasion was the driver speeding or otherwise behaving suspiciously. The officers turned on their flashing red lights and stopped the camper. The officers stated that they would have searched every single vehicle fitting the profile as it returned from the west.

Appellant Cortez was the driver and owner of the camper. When the truck was stopped, appellant Hernandez, wearing the “chevron” shoes, was sitting in the passenger’s seat. In the rear compartment of the camper were six aliens who had illegally entered the United States with Hernandez earlier in the evening.

The issue is whether under the Fourth Amendment adequate cause existed to justify the stop of the camper. The courts have recognized that brief, investigatory stops under circumstances not constituting probable cause for arrest or search are permissible for effective law enforcement. United States v. Avalos-Ochoa, 557 F.2d 1299, 1301 (9th Cir. 1977).

The quantum of cause necessary in such cases was established by the Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). “[Ojfficers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country”. 422 U.S. at 884, 95 S.Ct. at 2582.

This lesser standard is justified on the theory that the Fourth Amendment must apply to a “stop”, as well as to an arrest or seizure; however, because the intrusion upon privacy is not as great, the range of unreasonable police behavior is correspondingly less broad. United States v. Brignoni-Ponce, 422 U.S. at 779-81, 95 S.Ct. 2574; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The Brignoni-Ponce test has often been referred to, in more general terms, as the “founded suspicion” test. See United States v. Avalos-Ochoa, 557 F.2d at 1301; United States v. Rocha-Lopez, 527 F.2d 476 (9th Cir.), cert. denied, 425 U.S. 977, 96 S.Ct. 2181, 48 L.Ed.2d 802 (1976). We will use that term. We must determine whether founded suspicion existed at the time the officers turned on the flashing red lights atop their vehicle; nothing that happened afterward can be relied upon to justify the stop. United States v. Morrison, 546 F.2d 319 (9th Cir. 1976); United States v. Avalos-Ochoa, 557 F.2d 1299.

Finally, we note that the ultimate question on appeal is whether the trial judge’s finding that founded suspicion was present here was clearly erroneous. United States v. Patterson, 492 F.2d 995 (9th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 82, 42 L.Ed.2d 75 (1974); United States v. Thompson, 558 F.2d 522 (9th Cir. 1977); United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962) (en banc).

The founded suspicion test plainly requires balancing of the facts of the particular case, see Brignoni-Ponce, 422 U.S. at 884 — 85, 95 S.Ct. 2574, and in such circumstances we will not find absolutely controlling precedent since the facts will differ. A case from our court which is quite closely related is United States v. Carrizoza-Gaxiola, 523 F.2d 239 (9th Cir. 1975).

In that case, officers routinely stopped southbound vehicles in a “profile” class of automobile models thought likely to be stolen and transported from Phoenix or Tucson into Mexico. The “profile ” was, we may say, constructed from specific, articulable facts. Nevertheless, we said: “Founded suspicion requires some reasonable ground for singling out the person stopped as one who was involved ... in criminal activity”, (emphasis added) (523 F.2d at 241). We pointed out that Carrizoza-Gaxiola, himself, was doing nothing suspicious. Here, too, the stop was solely a product of a profile, not of facts associated with the individual, his behavior, or the specific appearance of his vehicle.

The founded suspicion test must be read as requiring some additional fact or facts which focus suspicion on the individual or vehicle stopped. As Mr. Justice Harlan said, discussing the Terry standard in his concurring opinion in Sibron v. New York, 392 U.S. 40, 73, 88 S.Ct. 1889, 1907, 20 L.Ed.2d 917 (1968), “[Tjhere must be something at least in the activities of the person being observed or in his surroundings that affirmatively suggests particular criminal activity . . . ”. (emphasis added) It is not enough that the officer has a hunch that criminal activity is afoot. United States v. Torres-Urena, 513 F.2d 540 (9th Cir. 1975).

The officers did not have a valid basis for singling out the Cortez vehicle. They saw no one in the camper. They saw nothing suspicious about the vehicle itself. They had no specific information about illegal movement of aliens in the area that night. They observed no mechanical or equipment defects in connection with the vehicle. They observed no violation of the traffic laws as in United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977). The sole suspicious fact connected with this specific vehicle was that it passed the officers’ post headed west and returned headed east, both times in the pre-dawn hours. The passage of nearly two hours’ time and the fact that the vehicle could have traveled to a small town and returned within that time, both furnish far too many innocent inferences to make the officers’ suspicions reasonably warranted. See United States v. Ogilvie, 527 F.2d 330 (9th Cir. 1975) (turning off highway and turning around).

Each appellant raises a second issue. Cortez complains of a jury instruction and Hernandez claims that his sentencing process was defective. Because of our resolution of the issue jointly raised, there is no need for us to reach these two claims.

The stop of Cortez’ vehicle was a violation of the appellants’ rights under the Fourth Amendment. The evidence adduced at trial was a direct product of the constitutional violation and should have been suppressed.

The convictions are reversed.