United States v. Mario Varela ( 2012 )

FILED
NOT FOR PUBLICATION SEP 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10448
Plaintiff - Appellee, D.C. No. 4:10-cr-00908-DCB-
GEE-1
v.
MARIO HUMBERTO VARELA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted September 12, 2012 **
Las Vegas, Nevada
Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Varela appeals the district court’s denial of his motion to suppress evidence
that he contends was obtained during an unconstitutional investigative stop. We
affirm.
The district court did not clearly err in concluding that Sifuentes’s testimony
was credible. Contrary to Varela’s arguments, Sifuentes’s testimony was
consistent with his initial report, albeit more detailed.
In light of his credible testimony, Sifuentes had reasonable suspicion to stop
the car driven by Varela, taking into account the totality of the circumstances,
which included the following facts: (1) Sifuentes was positioned in a remote area
frequented by drug smugglers, and was within fifteen miles of the border; (2) a
sensor alarm indicated that drug smugglers might be present in Sifuentes’s area;
(3) Sifuentes determined, in light of “officer experience,” United States v. Garcia-
Barron, 116 F.3d 1305, 1307 (9th Cir. 1997), that a tip from the driver of a Chevy
Blazer was a ruse intended to cause Sifuentes to leave the area so he would not see
Varela’s vehicle; and (4) Sifuentes determined, again in light of “officer
experience,” id., that tape-wrapped bundles in the car driven by Varela were bricks
of marijuana. See United States v. Arvizu, 534 U.S. 266, 269–70, 273, 277 (2002).
We reject Varela’s argument that the district court’s reliance on certain
factors (such as Varela’s failure to acknowledge Sifuentes, and Varela’s orange
2
hunting cap) was impermissible. The Supreme Court has prohibited courts “from
adopting a ‘divide-and-conquer analysis’ by looking at each factor in isolation and
according it no weight if it is susceptible to an innocent explanation.” United States
v. Berber-Tinoco, 510 F.3d 1083, 1088 (9th Cir. 2007) (quoting Arvizu, 534 U.S. at
274). And in any event, the remaining factors supported a determination that
Sifuentes had reasonable suspicion.
AFFIRMED.
3