People v. Mendoza ( 2020 )

Filed 2/18/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071835
v. (Super.Ct.No. SWF1707770)
BLANCA LUNA MENDOZA, ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendant and Appellant. REHEARING
[NO CHANGE IN JUDGMENT]
We deny the People’s petition for rehearing and modify the opinion filed in this
matter on February 5, 2020, by adding the following language to the opinion as footnote
5, appended to the end of the last sentence of the first partial paragraph on page 17, after
“innocuous.”
At oral argument and in a motion for rehearing, the People argue our
conclusion that Mendoza’s conduct wasn’t sufficient to arouse reasonable
suspicion even assuming she knew the person observing her was law
enforcement was nonbinding dicta. We disagree. “It is well settled that
where two independent reasons are given for a decision, neither one is to be
considered mere dictum, since there is no more reason for calling one
ground the real basis of the decision than the other. The ruling on both
grounds is the judgment of the court and each is of equal validity.” (Bank of
Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 650; see also Woods v.
1
Interstate Realty Co. (1949) 337 U.S. 535, 537 [“[W]here a decision rests
on two or more grounds, none can be relegated to the category of obiter
dictum”]; Greyhound Lines, Inc. v. County of Santa Clara (1986) 187
Cal.App.3d 480, 485 [“When an appellate court bases its decision on
alternative grounds, none is dictum”]; see generally 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 512, pp. 577-578.)
CERTIFIED FOR PUBLICATION
SLOUGH
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
2
Filed 2/5/20 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E071835
v. (Super.Ct.No. SWF1707770)
BLANCA LUNA MENDOZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.
Reversed.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Michael D. Butera, Deputy Attorneys General, for Plaintiff and
Respondent.
1
A jury convicted Blanca Luna Mendoza of transporting for sale more than four
kilograms of cocaine based on evidence a U.S. Customs and Border Protection agent
acquired after a stop on Interstate 15. Mendoza sought to exclude the evidence, arguing
the agent did not have reasonable suspicion she was engaged in criminal activity when he
stopped her.
The agent said he decided to stop Mendoza because she was driving in a known
smuggling corridor in a vehicle which had crossed the United States-Mexico border in
the prior week; she slowed and changed lanes after he pulled alongside her in an
unmarked car, rolled down his window, and stared at her; she drove at approximately 50
miles per hour to stay behind him; and she then refused to look at him when she
ultimately passed him a few minutes later. The trial court held—albeit with
reservations—that the stop was justified, and a jury later convicted her of transporting
narcotics for sale. Mendoza appeals her conviction based only on the impropriety of the
stop.
We conclude the agent based his decision to stop Mendoza on insufficient
evidence she was engaged in criminal activity. At bottom, the agent acted on a hunch,
which is improper, even though—in this case—it proved correct. We therefore reverse
the conviction and remand for further proceedings.1
Our reversal makes it unnecessary to reach Mendoza’s challenges to her
1
sentence.
2
I
FACTS
A. The Decision to Stop Mendoza
United States Border Patrol Agent Arturo Acosta testified for the prosecution at a
hearing on Mendoza’s motion to suppress.
He began by describing his experience and training. When he testified, Agent
Acosta had been a border patrol agent for almost 10 years and a member of the High
Intensity Drug Trafficking Area task force for less than a year. With the task force, his
responsibilities included patrolling, observing traffic, looking for illicit activity on the
highways, and running records checks.
Agent Acosta said his training included behavior analysis, which he described as
“being able to—for us to be able to pull over a vehicle, we need reasonable suspicion. For
me, a reasonable suspicion is a hunch of articulable facts that will allow us to pull over a
vehicle. [¶] The explanation could be something simple, something simple as a lane
change, the behavior or the person in the vehicle, the vehicle slowing down.”
On the morning of November 8, 2017, Agent Acosta was patrolling in an
unmarked car on Interstate 15 in San Diego County near the southern border of Riverside
County. Agent Acosta said he was there as part of the drug interdiction task force, and the
area he was patrolling is a major corridor for trafficking narcotics from Mexico.
At approximately 9:45 a.m., Agent Acosta saw Mendoza’s blue Jeep Liberty
traveling on I-15 near Highway 76. Consistent with his usual practice, he said, he ran her
3
plates and learned the vehicle had crossed the U.S.-Mexico border within the last week.
“It was—what I do on [the] highway, I run vehicle plates, and I try to get any nexus to
the border. So, I run plates and look at them. And this vehicle had recent nexus to the
border when I saw it.” Agent Acosta also learned the car was registered to a woman who
resided in Chula Vista, near the U.S.-Mexico border. On cross-examination, Agent
Acosta said he obtained no other information about the car or the driver at that time and
acknowledged there was nothing else about the vehicle that drew his attention.
Based on the recent border crossing, Agent Acosta approached Mendoza and her
vehicle. “So, the initial thing that I did, I saw that it had a nexus [to the U.S.-Mexico
border]. I pulled up next to the vehicle to see who was driving the vehicle, see if it was a
female, male, then determine if it’s the same person that was in the vehicle just by
gender. And when I did that, I couldn’t see her. [¶] So, I rolled down my window, I
looked over at her, and she looked over at me.” He said he believed he pulled alongside
Mendoza on her passenger side and the two made eye contact after he rolled down his
driver-side window. He said they maintained eye contact for a while because he
remembered “leaning forward in the vehicle to get a better look when I think she got a
really good look at me.”
According to Agent Acosta, Mendoza’s reaction was cause for suspicion. He said,
after “I introduced myself by rolling down the window, having her see [me], [and] me I
see[] her” he was able to judge her reaction against how the general public drives.
Whereas the public “don’t seem nervous they don’t seem to be erratic in lane changing,
4
slowing down,” Mendoza, “immediately slowed down in speed and then got behind me.”
According to Agent Acosta, he moved his vehicle into the slow lane, to the right of her,
but Mendoza “was not willing to pass me even though I slowed down to approximately
50 miles an hour.” They drove like that—Agent Acosta ahead of Mendoza and one lane
to her right—for about three miles. At that point, Mendoza passed Agent Acosta’s car on
the left. He said she had both hands on the wheel and didn’t look at him as she passed.
Agent Acosta decided to initiate a traffic stop and activated his patrol vehicle’s
lights and siren once he was behind her. He described the totality of the circumstances
warranting the stop like this: “So, the totality is based off of the nexus to the border—
recent nexus to the border, female crossing it, female driver of the vehicle, driving
behavior, lane changes behind me, speed, not passing me for—I believe it was
approximately three miles even though I slowed down considerably because—in
comparison to the general public that was on the highway that day, her rigid posture once
I approached the vehicle again. All of that and I thought I had a reasonable suspicion to
pull over the vehicle.”
Once Mendoza had stopped, Agent Acosta approached the vehicle, identified
himself as a border patrol agent, and began conducting a roadside interview in Spanish.
During the interview, Agent Acosta noticed a black backpack on the passenger-side
backseat of the car. He asked Mendoza for permission to search the vehicle and she
consented. Inside the backpack, he found seven packaged bricks of cocaine, each
weighing approximately one kilogram.
5
B. The Court Proceedings
The Riverside County District Attorney charged Mendoza with transporting a
controlled substance for sale (Health & Saf. Code, § 11352, subd. (a); count 1) and
possessing a controlled substance for sale (Health & Saf. Code, § 11351; count 2). On
both counts, they alleged Mendoza possessed more than four kilograms of cocaine.
(Health & Saf. Code, § 11370.4, subd. (a)(2).) On the People’s request, the court
dismissed count 2 and the corresponding enhancement allegation before trial.
Mendoza moved to suppress the drug evidence on the same ground she asserts
here on appeal—that the agent didn’t have reasonable suspicion to justify the stop.
Defense counsel argued the agent simply jumped to unwarranted conclusions and had no
basis reasonably to infer Mendoza was engaged in criminal activity. The prosecution
argued the totality of the circumstances provided the agent with reasonable suspicion
Mendoza was engaged in criminal activity.
The trial court heard Agent Acosta’s testimony and noted how weak the
justification was for making the stop. “I agree with pretty much everything the defense
has said about the—about how weak it is [¶] . . . [¶] I agree, though, with the defense that
this is really, really lightweight.”
Nevertheless, the court denied the motion to suppress. “I don’t disagree with the
defense that this is like the bottom of allowability for reasonable suspicion. I mean, it’s
just—there’s a couple things there. But under the case law, they were articulable by the
officer. [¶] Here’s the four things that are, whatever, five things, that I used because I
6
thought that . . . made this person suspicious. And that’s what they do on the freeway.
And also, all he did was stop her to talk to her for a little bit. [¶] . . . I’m going to deny the
motion, but I do agree that if this was taken up on appeal or whatever, that this is paper
thin for reasonable suspicion. It certainly was in the officer’s mind, and he’s an
experienced officer. [¶] And he was able to articulate four or five things. They were
weak, but they were together in the totality. They were articulable reasonable suspicions.
They weren’t something he made up. And they weren’t something that had nothing to do
with anything. And so I’m going to deny the motion with the understanding that this is
like the very bottom of what I would actually [¶] . . . approve. I think it’s pretty weak.”
The drug evidence admitted, a jury found Mendoza guilty of transportation of
narcotics for sale and found true the quantity enhancement allegation. At sentencing, the
trial court imposed the low term of three years for the offense and five years consecutive
for the enhancement. The court imposed a split sentence of eight years in county custody,
divided between four years in county jail and four years of mandatory supervision.
Mendoza filed a timely notice of appeal.
II
ANALYSIS
Mendoza argues the trial court erred by denying her motion to suppress the
evidence found during the search of her vehicle because law enforcement did not have
reasonable grounds to stop her in the first place. Since the stop was unlawful, she argues,
7
the trial court should have suppressed the fruits of the search conducted after the stop.
(People v. Loewen (1983) 35 Cal.3d 117, 122-123 (Loewen).) We agree.
The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. (Terry v. Ohio (1968) 392 U.S. 1, 8-9.) The primary
purpose of the Fourth Amendment is to “impose a standard of ‘reasonableness’ upon the
exercise of discretion by government officials, including law enforcement agents, in
order to ‘safeguard the privacy and security of individuals against arbitrary invasions.’”
(Delaware v. Prouse (1979) 440 U.S. 648, 653-654.) “A defendant may move . . . to
suppress as evidence any tangible or intangible thing obtained as a result of a search or
seizure” if “[t]he search or seizure without a warrant was unreasonable.” (Pen. Code,
§ 1538.5, subd. (a)(1)(A).) A traffic stop is a seizure within the meaning of the Fourth
Amendment. (Delaware v. Prouse, at p. 653.)
“It is settled that circumstances short of probable cause to make an arrest may
justify a police officer stopping and briefly detaining a person for questioning or other
limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892, superseded on another
ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) However, law
enforcement officers are not free to detain citizens at will. “[T]o justify an investigative
stop or detention the circumstances known or apparent to the officer must include
specific or articulable facts causing him to suspect that (1) some activity relating to crime
has taken place or is occurring or about to occur, and (2) the person he intends to stop or
detain is involved in that activity.” (In re Tony C., at p. 893.)
8
Officers may properly “draw on their own experience and specialized training to
make inferences from and deductions about the cumulative information available to them
that ‘might well elude an untrained person.’” (United States v. Arvizu (2002) 534 U.S.
266, 273 (Arvizu).) However, the officer’s suspicion must be objectively reasonable.
“[T]he facts must be such as would cause any reasonable police officer in a like position,
drawing when appropriate on [their] training and experience . . . to suspect the same
criminal activity and the same involvement by the person in question. The corollary to
this rule, of course, is that an investigative stop or detention predicated on mere curiosity,
rumor, or hunch, is unlawful, even though the officer may be acting in complete good
faith.” (In re James D. (1987) 43 Cal.3d 903, 919-920.)
We exercise independent judgment to determine the legality of the search or
seizure, but we defer to the trial court’s factual findings supported by substantial
evidence. (People v. Suff (2014) 58 Cal.4th 1013, 1053; People v. Ayala (2000) 23
Cal.4th 225, 255.) We resolve factual conflicts in the manner most favorable to the trial
court’s disposition of the suppression motion. (People v. Martin (1973) 9 Cal.3d 687,
692.)
Here, it was not objectively reasonable to suspect Mendoza was involved in
criminal activity. Agent Acosta said Mendoza caught his attention initially only because
she was driving in a known drug trafficking corridor in a vehicle that had crossed the
U.S.-Mexico border approximately a week earlier.
9
There’s no question driving on the I-15 is not sufficient to warrant a stop.
Interstate 15 is a heavily traveled stretch of highway. The portion of the I-15 in San
Diego County is among the top 20 most traveled highway stretches in the United States,
averaging 295,000 vehicles a day in 2008. (Office of Highway Policy Information, U.S.
Dept. of Transportation, Most Travelled Urban Highways Average Annual Daily Traffic,
https://www.fhwa.dot.gov/policyinformation/tables/02.cfm, as of Jan. 7, 2020.)
According to the California Department of Transportation, in 2017 the average daily
traffic on northbound I-15 between the Highway 76 intersection and the Mission Road
intersection exceeded 146,000 vehicles. (California Department of Transportation,
Caltrans Traffic Census Program, https://dot.ca.gov/programs/traffic-operations/census,
as of Jan. 7, 2020.)2 “An ‘officer’s assertion that the location lay in a ‘high crime’ area
does not elevate . . . facts into a reasonable suspicion of criminality . . . The spectrum of
legitimate human behavior occurs every day in so-called high crime areas.’” (Loewen,
supra, 35 Cal.3d at p. 124.)
Nor does Mendoza’s “nexus” to the border warrant a stop. The U.S.-Mexico
border is the most crossed border in the world. (Glenday, Craig (2009) Guinness World
Records 2009, Random House Digital, Inc. p. 457 [“in 2000, more than 290 million
people crossed from Mexico into the USA”].) According to the United States Department
2 We grant Mendoza’s motion for judicial notice as it concerns statistics regarding
the volume of border crossings and daily traffic as reported by the U.S. Department of
Transportation and the California Department of Transportation. (Evid. Code, §§ 452,
subd. (h), 459, subd. (a).) In all other respects, we deny the motion.
10
of Transportation, Bureau of Transportation Statistics, 1,158,239 personal vehicles
entered the United States from Mexico through the San Ysidro port of entry in November
2017. (Bureau of Transportation Statistics, U.S. Dept. of Transportation, Border Crossing
Entry Data, https://www.bts.gov/content/border-crossingentry-data, as of Jan. 7, 2020.)
Thus, though Mendoza’s vehicle’s recent border crossing and location on the I-15
provided some reason to look into her activities further, they provided almost no basis for
thinking she was involved in criminal activity. Those factors alone would draw into
suspicion tens of thousands of people every day, perhaps more. The factors law
enforcement rely on to justify a stop, if amenable to innocent explanation, “must serve to
eliminate a substantial portion of innocent travelers.” (United States v. Foreman (4th Cir.
2004) 369 F.3d 776, 781; see also People v. Valenzuela (1994) 28 Cal.App.4th 817, 834
[no reasonable suspicion where “[t]he criteria upon which [the agent] relied did not
differentiate defendant from any number of innocent persons”].) Agent Acosta therefore
needed some other basis for stopping Mendoza.
The additional factors Agent Acosta described were simply insufficient to warrant
the stop. The agent said he also considered the fact that Mendoza slowed and moved over
behind him after he pulled alongside to inspect her vehicle. However, the manner of his
approach is critical to evaluating Mendoza’s reaction. He acknowledged he drove an
unmarked vehicle with no signs of its relation to law enforcement. As a result, when he
pulled alongside her it was his conduct that looked suspicious, not hers. The agent said he
drew even on her passenger side, couldn’t see her through his tinted windows, lowered
11
his window, and then stared at her. Indeed, he said he bent forward to get a better look
and their eyes met. She reacted by taking fairly innocuous action to avoid him. Mendoza
didn’t drive erratically, didn’t changed lanes repeatedly, and didn’t use other evasive
maneuvers. She just slowed down and pulled behind him.3
Given the fact that Agent Acosta drove an unmarked vehicle and did nothing to
identify himself as law enforcement, the most natural interpretation of Mendoza’s
conduct is that she sought to avoid him because she found his conduct threatening and
potentially aggressive. Agent Acosta did not appear to make this connection but instead
inferred she was trying to avoid him to cover up her criminal conduct.
Mendoza’s conduct after getting behind the agent adds no basis for suspicion. The
agent said he slowed down and then changed lanes to be on Mendoza’s right. He
expected she would pass him at that point, but she instead slowed with him and drove at
approximately 50 miles per hour in the second lane from the right to keep him in front of
her. Agent Acosta inferred she was trying to avoid being stopped by law enforcement.
But given the absence of evidence that she knew it was law enforcement who was
inspecting her, the natural inference is she was trying to maintain a safe position with
respect to a civilian driver who was behaving in a threatening manner toward a woman
driving alone.
3 The People rely on People v. Letner and Tobin (2010) 50 Cal.4th 99, 147-148, as
support for the proposition that Mendoza’s slowing down to fall behind Agent Acosta
provided a basis for him to infer she was attempting to avoid contact with law
enforcement. Among other distinguishing features of that case, the officer in Letner and
Tobin followed the defendant in a marked patrol car. (Id. at p. 147.)
12
When Mendoza finally passed his vehicle, he said she kept both hands on the
wheel and looked straight ahead. Her posture and comportment is consistent with any
number of innocent explanations, for example she felt threatened by the fact that a
stranger had pulled alongside her vehicle, rolled down his window, and stared at her. In
any event, it was perfectly natural for Mendoza to keep her hands on the steering wheel
and her eyes on the road, as Agent Acosta testified she did. (People v. Moore (1968) 69
Cal.2d 674, 683 (Moore), overruled on another ground by People v. Thomas (1977) 19
Cal.3d 630, 637; People v. Valenzuela, supra, 28 Cal.App.4th at p. 828 [“[T]he inference
that ‘nervousness’ existed and was based on defendant’s desire to avoid contact with
Agent Hudson is pure speculation”].) Again, the reasons Agent Acosta articulated for
suspecting Mendoza of criminal conduct are insufficient.
We don’t mean to suggest the reactions of a person under observation by law
enforcement can’t warrant a stop. They may, under the right circumstances. But for such
a reaction to evince guilt, rather than general fear or caution, there must be some
indication the person is aware they’re being observed by law enforcement. That element
is absent here and sets this case apart from a case like Arvizu, where the defendant
engaged in much more suspicious conduct on seeing a recognizable border patrol vehicle
approach. (Arvizu, supra, 534 U.S. at pp. 270-271.)
The defendant in Arvizu also put out many more signals to warrant suspicion.
First, the circumstances themselves were much more suspicious. The defendant was
driving “along a little-traveled route used by smugglers to avoid [a border patrol]
13
checkpoint,” the agent knew the driver was passing through when officers would be
leaving their backroads patrols to change shifts, and it was unlikely the driver and his
family were on an innocent picnic outing because they had already turned away from
known recreational areas in one direction and reaching those in another direction would
have required a 40-to-50-mile trip on unpaved and primitive roads. (Arvizu, supra, 534
U.S. at pp. 268, 270, 277.) Second, the conduct of the people in the car, who knew border
patrol was watching them, was much more unusual than Mendoza’s mild attempt to keep
her distance from Agent Acosta. The agent noticed children in the back of the vehicle had
their knees up “unusually high, as if their feet were propped up on some cargo on the
floor,” and said the children “put their hands up at the same time and began to wave at
[the agent] in an abnormal pattern . . . as if the children were being instructed,” a gesture
which continued for a period of four or five minutes. (Id. at p. 270.) The setting, the
evidence that the people knew they were being observed by law enforcement, and their
unusual conduct gave the agent in that case a strong basis to suspect they were engaged in
criminality. Here, the agent stopped Mendoza while she drove on a major highway
displaying nothing but ordinary nervousness after being accosted by an unfamiliar man
whose connection with law enforcement was not evident.
Of course, we must consider all the factors Agent Acosta identified together. (U.S.
v. Valdes-Vega (2013) 738 F.3d 1074, 1078-1079.) But the factors he articulated were not
sufficient even in their totality, and even accepting that Mendoza’s slow speed, lane
change, and rigid posture indicated signs of nervousness under scrutiny. We therefore
14
conclude the agent essentially operated on a hunch, not reasonable suspicion.4 (Loewen,
supra, 35 Cal.3d at pp. 128-129 [“[S]ince the pickup was not driven erratically, and
neither occupant’s gestures were otherwise objectively suspicious, the fact that the pickup
continued on, even at an accelerated pace, was not reasonably indicative of criminal
behavior”].) Indeed, that’s how Agent Acosta articulated his own understanding based on
his “behavior analysis” training: “For me, a reasonable suspicion is a hunch of articulable
facts.” Respectfully, a hunch is not enough, and the totality of evidence supporting
reasonable suspicion must be something more than the fact that a driver in a known crime
area executed a lane change, slowed down, and refused to acknowledge the scrutiny of a
law enforcement officer who was not identified as such.
Our Supreme Court’s opinion in People v. Moore supports our conclusion. There,
a police officer observed a man making a telephone call from a public phone booth in an
area of high narcotics traffic. (Moore, supra, 69 Cal.2d at pp. 677-678.) The man seemed
to see the officer and then “moved from a comfortable position in the telephone booth,
and turned his back on the police car. Defendant appeared nervous. The officer thought
4 The People rely on United States v. Raygoza-Garcia (9th Cir. 2018) 902 F.3d
994, 1000-1001 and U.S. v. Cheromiah (10th Cir. 2006) 455 F.3d 1216, 1218-1219 to
support the reasonableness of Agent Acosta’s suspicion, but the defendants in those cases
exhibited many more signs they were engaged in criminal conduct. In Raygoza-Garcia,
the agents determined the vehicle had recently crossed the border multiple times, crossed
again the same morning, and a different person was driving the vehicle. In Cheromiah,
the vehicle had temporary license plates, drove on a “well-known circuitous route
frequently used by smugglers to avoid the Border Patrol checkpoints,” and the agents
observed someone in the back of the van “diving down” when law enforcement came into
view.
15
that defendant ‘was trying to avoid’ him.” Considering his nervous conduct together with
“‘the area and the surrounding circumstances,’” the officer detained the man. (Ibid.) Our
Supreme Court held the detention was invalid. The Court held “[t]o hold that police
officers should in the proper discharge of their duties detain and question all persons in
that location or all those who act nervous at the approach of officers would for practical
purposes involve an abrogation of the rule requiring substantial circumstances to justify
the detention and questioning of persons on the street.” (Id. at p. 683.) We conclude the
same logic applies here.
Indeed, the Moore case would require the same result even if Agent Acosta had
approached Mendoza in a marked border patrol vehicle. First, the setting here was far less
suspicious than in Moore, where the police officer saw the suspect in an area where “[t]he
officer had made several narcotics arrests” and he knew “addicts [went] to th[e] location
to make purchases from the street peddlers.” (Moore, supra, 69 Cal.2d at p. 678.) As
we’ve noted, though the I-15 is a known drug trafficking corridor, it also accommodates
far more traffic for legitimate business and personal travel. Driving on the highway—
even within a week of driving across the border—is far less reason for suspicion than
loitering in an area known as a locus for street drug sales. Second, Mendoza’s reaction to
the officer’s presence was as innocuous as the reaction of the defendant in Moore. There,
the officer said the defendant saw the police car enter the parking lot and changed
positions in a telephone booth, from a comfortable position to a more awkward position
seemingly to avoid the police. (Ibid.) Mendoza did nothing more than attempt to avoid
16
Agent Acosta here. She saw someone pull alongside her, lower his window, and try to
make eye contact. She reacted by slowing to get behind the other driver and slowing
more when the other car slowed with her. She then took a few minutes before deciding to
pass him and refused to look over as she passed. This demonstrates nothing more than
nervousness under observation and does not warrant a stop, particularly when the other
circumstances were so innocuous. (Id. at p. 683.)
We therefore agree with the trial court that the justification for the stop was “paper
thin for reasonable suspicion.” We disagree, however, with the court’s conclusion that the
agent’s articulated reasons were enough to paper over the problems with the decision to
stop Mendoza’s vehicle. It’s not enough that the agent “was able to articulate four or five
things” to justify the stop, or that those things “weren’t something he made up . . . [or]
weren’t something that had nothing to do with anything.” The Fourth Amendment
requires more.
To initiate a stop, an agent must have an objectively reasonable basis for
suspicion. The agent in this case did not have such a basis. Nothing about Mendoza’s car
suggested she might be involved in criminal activity, and though she sought to avoid the
agent, the evidence doesn’t suggest she knew he was law enforcement. That fact
undercuts the agent’s inference that she was trying to avoid detection of criminal conduct,
but given the setting, Mendoza’s reaction to being observed was so minor it wouldn’t
provide adequate ground for suspicion even had the agent been driving a marked law
enforcement vehicle. We therefore conclude the agent acted without a reasonable basis
17
for suspicion when he stopped Mendoza, and the trial court erred in denying her motion
to suppress.
We recognize the trial court credited Agent Acosta’s testimony and we do not
mean to suggest he did not testify in good faith. However, in this case, Agent Acosta’s
“good faith suspicion” Mendoza was “engage[d] in criminal activity was not reasonable.
None of the . . . factors [he] testified to . . . ‘mysteriously bec[a]me imbued with an aura
of guilt merely by viewing them in their ‘totality.’’” (Loewen, supra, 35 Cal.3d at p. 129.)
Any amount times zero equals zero. (Ibid.)
III
DISPOSITION
We reverse the judgment.
CERTIFIED FOR PUBLICATION
SLOUGH
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
18