United States v. Quintana-Grijalva

FILED
United States Court of Appeals
Tenth Circuit
June 15, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 08-2207
(D. N.M.)
JESUS GERARDO QUINTANA- (D.Ct. No. 2:07-CR-02510-RB-1)
GRIJALVA,
Defendant - Appellant.
____________________________
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
Therefore, this case is ordered submitted without oral argument.
Jesus Gerardo Quintana-Grijalva was apprehended in southern New
Mexico, approximately thirty miles from the international border, after fleeing
*
This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation --
(unpublished). 10th Cir. R. 32.1(A).
from his marijuana-laden truck on foot. The district court denied his motion to
suppress, concluding he lacked standing to challenge the seizure of marijuana
from his vehicle because he voluntarily abandoned it. Following the court’s
ruling, Quintana-Grijalva entered into a plea agreement with the government,
reserving his right to appeal from the denial of his motion to suppress. He now
appeals; we affirm.
I. BACKGROUND
On September 22, 2007, a white Ford F-150 extended cab pickup truck
crossed illegally into the United States by cutting through a fence, but escaped
back to Mexico when approached by United States Border Patrol (USBP) agents.
The following day, USBP agent Adrian Miranda 1 and an agent trainee were
advised a portion of fence had been cut just north of the border near San Luis
Pass, a vehicle intrusion had apparently occurred, and the agents should look out
for the illegally-crossing vehicle. They were also advised of the events the day
before. After receiving this information, Miranda and the agent trainee began
their patrol in a white, unmarked Dodge Durango equipped with a canine in a
kennel.
The agents traveled down Perimeter Road, which provides one of the few
northerly routes bypassing Highway 81, the major highway running north from
1
Miranda testified at the suppression hearing that during his approximately seven
years as a USBP agent, he has served exclusively in the Lordsburg, New Mexico area and
has been involved in approximately fifteen apprehensions in that area.
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the Antelope Wells Port of Entry. Perimeter Road is a one-lane dirt road which
sees “[v]ery minimal” traffic. (R. Vol. III at 37.) It is used primarily by a local
rancher and rarely by non-locals. All of the roads in the area, including Perimeter
Road, are notorious for smuggling.
In the early afternoon, Miranda spotted a white Ford F-150 extended cab
pickup truck driving north toward him on Perimeter Road, approximately thirty
miles from the international border. Miranda did not recognize the vehicle. He
surmised the Ford most likely traveled north on Highway 81 before turning onto
Perimeter Road. Miranda pulled over to allow the Ford to pass. Though it is
customary for occupants of vehicles encountering each other in this area to speak
with one another when they pass, the occupants of the Ford did not stop. Instead,
they looked at Miranda and his colleague, turned away, then looked straight
ahead. Neither the driver nor the passenger turned to see how close they were to
the Dodge when they passed. Miranda noticed the driver and passenger appeared
to be Mexican. He also noticed the Ford had an Arizona license plate with a fleet
tag, which indicated it was a rental vehicle. 2 Miranda knew smugglers often
utilize stolen and rental vehicles in order to avoid having their personal vehicles
confiscated. While he testified he had encountered non-local traffic on Perimeter
Road in the past, he could not recall encountering a rental vehicle with Arizona
2
Miranda explained the license plate stated “F-L-T” which usually indicates the
vehicle belongs to a fleet of rental vehicles. (R. Vol. III at 21.)
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plates that was not involved in smuggling.
Miranda executed a U-turn and began following the Ford. For purposes of
officer safety, he requested a registration check on the license plate. He also
requested a 72-hour lane check to ascertain whether it had crossed the border via
a port of entry during the previous 72 hours. The lane check indicated the Ford
had not recently passed through a port of entry. While waiting on the registration
check, Miranda continued to follow the Ford from approximately two or three car
lengths behind. Miranda noticed the driver of the Ford looking out of his side
mirror at Miranda and then turning to speak to the passenger. The Ford slowed
almost to a stop, continued on, and then slowed down again. Miranda did not
attempt to pass. After a couple of minutes, the registration check came back
indicating the Ford was registered with a rental company in Phoenix, Arizona.
Miranda knew Phoenix to be a common smuggling destination.
Miranda activated his emergency equipment in order to conduct an
immigration inspection. The driver accelerated, the truck fish-tailed, and they
turned around to head south. During the process, the Ford hit the berm next to
Miranda’s Dodge, became airborne, and almost hit the Dodge. As Miranda turned
his vehicle around to follow, he notified his supervisor of the Ford’s failure to
yield and requested assistance. Another USBP agent advised Miranda he would
deploy spikes to deflate the tires of the Ford. Miranda disengaged his emergency
equipment, and the Ford slowed down. Miranda continued to follow the Ford
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from a distance of approximately four or five car lengths.
Miranda followed the Ford for five to ten minutes before the Ford came
upon the spikes. As the Ford approached the spikes, the driver attempted to veer
off the road and through a fence. The berm prevented the Ford from hitting the
fence and caused it to slide back down the berm at an angle. It ran over the
spikes with its right rear tire, but continued east toward Highway 81. Another
USBP vehicle was parked at the intersection of Highway 81. Approximately 50
to 100 yards from the intersection, the Ford left the road in a southerly direction
toward Highway 81. Just south of the intersection, it drove through a barbed wire
fence along Highway 81 and ended up on the pavement, approximately 100 yards
away from Miranda’s vehicle. It continued south on Highway 81 for
approximately fifteen minutes. Miranda continued to follow from approximately
five car lengths and witnessed both the driver and the passenger talking on a
radio. Other USBP vehicles were also following the Ford at this point.
As the Ford attempted to enter San Luis Pass; it missed the entrance and
went through the barbed wire fence just south of the location where the cut fence
had been reported the previous day. It continued on for approximately 100 yards
before the entangled barbed wire brought it to a stop. Miranda followed and
observed the driver rocking the Ford in an attempt to free it from the barbed wire.
As Miranda approached in his Dodge, the driver and the passenger jumped out of
the Ford, left the doors to the cab open and ran in opposite directions.
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Approximately fifty yards east of the Ford, Miranda apprehended the
driver, who identified himself as Quintana-Grijalva. Miranda transferred custody
of Quintana-Grijalva to other USBP agents who transported him, along with the
passenger, to the Lordsburg Border Patrol Station for processing. Miranda
returned to his Dodge, got his canine partner, and had the dog check the Ford.
The dog alerted to the back of it. The USBP agents opened the extended cab
portion of the Ford and observed bundles of a substance under a blanket that
field-tested positive for marijuana. The USBP agents also discovered cell phones,
a two-way radio, and a battery for the radio.
Quintana-Grijalva was indicted with conspiracy to possess with intent to
distribute 100 kilograms and more of marijuana (Count One) and possession with
intent to distribute 100 kilograms and more of marijuana and aiding and abetting
the same (Count Two). 3 He filed a motion to suppress the marijuana discovered
in the truck arguing the stop of his vehicle was not justified at its inception
because it was not based upon reasonable suspicion. 4 The government argued
Quintana-Grijalva lacked standing to challenge the seizure of the marijuana
because he abandoned it when he fled from the truck. The government also
3
The passenger of the vehicle, Oscar Almarez-Lopez, was indicted on these same
charges. He pled guilty to Count Two pursuant to a plea agreement and was sentenced to
60 months imprisonment.
4
Quintana-Grijalva stated he also sought to suppress the statements he made to the
USBP agents after he was arrested as “fruit of the poisonous tree.” (R. Vol. III at 36.) He
offered no argument on this point and indicated to the district court at the hearing that he
did not challenge the admissibility of any statements he made following his arrest.
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argued the stop was supported by reasonable suspicion. The district court held a
hearing at which Miranda testified to the facts recited above.
The court concluded Quintana-Grijalva did not have standing to challenge
the seizure of the marijuana because he “abandoned the Ford and its contents
when he jumped out, left the door open with the marijuana in the extended cab of
the Ford, and fled from agents on foot.” (R. Vol. I at 37.) It determined
Quintana-Grijalva’s flight from the Ford was voluntary because it did not result
from a Fourth Amendment violation. It held, based on the totality of the
circumstances, the agents had reasonable suspicion to believe the occupants of the
Ford were involved in criminal activity.
Following the denial of his motion to suppress, Quintana-Grijalva entered
into a plea agreement with the government pursuant to which he pled guilty to
both counts of the indictment, but reserved his right to appeal the denial of his
motion to suppress. The court sentenced Quintana-Grijalva to 60 months
imprisonment on each count to run concurrently.
II. DISCUSSION
Quintana-Grijalva contends he has standing to challenge the seizure of the
marijuana because he did not abandon his vehicle and, if he did, the abandonment
was not voluntary because it followed a Fourth Amendment violation.
A. Abandonment
“The Fourth Amendment protects people from unreasonable government
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intrusions into their legitimate expectations of privacy. But a warrantless search
and seizure of abandoned property is not unreasonable under the Fourth
Amendment . . . because when individuals voluntarily abandon property, they
forfeit any expectation of privacy in it that they might have had.” United States
v. Austin, 66 F.3d 1115, 1118 (10th Cir. 1995) (quotations and citations omitted).
“The test for abandonment is whether an individual has retained any reasonable
expectation of privacy in the object. Abandonment is akin to the issue of
standing because a defendant lacks standing to complain of an illegal search or
seizure of property which has been abandoned.” United States v. Garzon, 119
F.3d 1446, 1449 (10th Cir. 1997) (quotations and citations omitted). The burden
is on the government to establish abandonment by a preponderance of the
evidence. See United States v. Denny, 441 F.3d 1220, 1226 (10th Cir. 2006). The
inquiry is one of intent and subsumes both a subjective and objective component.
See Garzon, 119 F.3d at 1449.
“Findings of subjective intent are findings of fact, which we review only
under a clearly erroneous standard.” Id. Here, the district court found
“[Quintana-Grijalva] and the passenger intended to abandon the Ford and its
contents when they fled on foot.” (R. Vol. I at 36.) Quintana-Grijalva maintains
“no evidence exists as to [his] actual intent at the time he ran from the Ford.”
(Appellant’s Br. at 15.) He appears to discount the fact that his conduct—the
flight from the truck—is clearly demonstrative of his subjective intent.
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Moving on to the objective intent, “whether the defendant retained an
objectively reasonable expectation of privacy in the property that society will
recognize is a question of law that we review de novo.” Garzon, 119 F.3d at
1449. Quintana-Grijalva argues under an objective test, the possessions he left in
the Ford—cell phones, a two-way radio and a battery—indicate he intended to
return to the vehicle. That is the extent of his argument. He does not cite legal
authority to support his position. For that reason alone, we need not devote much
time to his argument. See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213,
1217 (10th Cir. 2008) (deeming argument waived for failure to cite supporting
legal authority or record evidence); MacArthur v. San Juan County, 495 F.3d
1157, 1160-61 (10th Cir. 2007) (“[M]ere conclusory allegations with no citations
to the record or any legal authority for support does not constitute adequate
briefing.”) (quotations omitted).
In any case, whether a defendant harbored a desire to later retrieve an
object allegedly abandoned “is irrelevant to our analysis of the objective
component.” Denny, 441 F.3d at 1227. In Denny, we held the defendant had
abandoned a clear plastic bag which contained cocaine when he removed it from a
larger bag, placed it underneath his seat on a train, and disclaimed ownership of
it. Id. at 1223. Although the defendant “undoubtedly intended to retrieve the bag
once the agent was no longer on his trail,” that fact alone “[did] not dispose of
our inquiry.” Id. at 1227. We explained: “Even where a suspect does not
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subjectively intend to relinquish all ownership interest in an item, such suspect
may nevertheless relinquish his or her reasonable expectation of privacy in the
item.” Id. Because the defendant did not retain a reasonable expectation of
privacy in the clear plastic bag that society was willing to recognize, we reversed
the district court’s grant of the defendant’s motion to suppress.
Similarly here, Quintana-Grijalva did not retain a reasonable expectation of
privacy in the truck or any of its contents when he fled from the truck, leaving the
doors open and the marijuana (and other objects) inside.
B. Voluntariness
“An abandonment must be voluntary . . . .” Austin, 66 F.3d at 1118.
Quintana-Grijalva claims if he did abandon the Ford and its contents, the
abandonment was not voluntary because: (1) he was being pursued by law
enforcement at the time of the abandonment; and (2) the abandonment resulted
from an earlier Fourth Amendment violation. A “police pursuit or investigation
at the time of abandonment of property does not of itself render abandonment
involuntary.” United States v. Ojeda-Ramos, 455 F.3d 1178, 1187 (10th Cir.
2006) (quotations omitted). However, “[a] defendant’s abandonment of property .
. . is not voluntary if it results from a violation of the Fourth Amendment.” Id.Thus, we consider only whether Quintana-Grijalva’s abandonment resulted from
an earlier Fourth Amendment violation. “The ultimate determination of
reasonableness under the Fourth Amendment is . . . a conclusion of law that we
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review de novo.” United States v. De La Cruz-Tapia, 162 F.3d 1275, 1277 (10th
Cir. 1998) (quotations omitted). The evidence to support that conclusion,
however, must be viewed in the light most favorable to the prevailing party, and
we must accept the district court’s findings of fact unless they are clearly
erroneous. See id. at 1277-78.
An abandonment is involuntary only when preceded by a Fourth
Amendment violation; the abandonment must “result[] from” the violation.
Ojeda-Ramos, 455 F.3d at 1187 (emphasis added). In this instance, Quintana-
Grijalva was not seized before he abandoned the Ford. For there to be a seizure,
the suspect must submit to the officer’s authority. See California v. Hodari D.,
499 U.S. 621, 629 (1991) (holding defendant was not seized when he tossed crack
cocaine from his person while engaged in a foot chase with the police because an
officer’s assertion of authority does not constitute a seizure unless the suspect
actually submits to the authority); United States v. Harris, 313 F.3d 1228, 1235
(10th Cir. 2002) (holding police officer did not seize defendant when he began
asking him for his identification because defendant “did not submit” to the
officer’s authority); Latta v. Keryte, 118 F.3d 693, 700 (10th Cir. 1997) (holding
defendant not seized during unsuccessful pursuit on the interstate because it “did
not cause [him] to submit to the authority or succeed in stopping him”); Bella v.
Chamberlain, 24 F.3d 1251, 1256 (10th Cir. 1994) (holding plaintiff was not
seized when an officer fired three rounds at the helicopter he was piloting because
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the shots “did not cause [the plaintiff] to submit nor did they otherwise succeed in
stopping him”) (footnote omitted). Whether Miranda reasonably suspected
criminal activity when he activated his emergency equipment is irrelevant to the
Fourth Amendment analysis because Quintana-Grijalva did not submit to
Miranda’s authority. As the district court correctly held, Quintana-Grijalva was
not seized until he was apprehended after abandoning the Ford. Because
Quintana-Grijalva’s Fourth Amendment rights were not implicated prior to the
seizure, Quintana-Grijalva’s abandonment could not have “result[ed] from” a
Fourth Amendment violation. See Ojeda-Ramos, 455 F.3d at 1187.
For the sake of completeness, we consider the district court’s determination
that Miranda had a reasonable suspicion of criminal activity when he activated his
emergency equipment. When a border patrol agent conducts a roving border
patrol stop, he must have “reasonable suspicion that criminal activity may be
afoot.” United States v. Gandara-Salinas, 327 F.3d 1127, 1129 (10th Cir. 2003).
“Although an officer’s reliance on a mere hunch is insufficient to justify a stop,
the likelihood of criminal activity need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the
evidence standard. Border patrol agents may thus stop vehicles if they are aware
of specific articulable facts, together with rational inferences from those facts,
that reasonably warrant suspicion of criminal activity.” Id. (quotations and
citations omitted).
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The following factors are relevant in determining whether an
immigration stop is supported by reasonable suspicion: (1)
characteristics of the area in which the vehicle is encountered; (2) the
proximity of the area to the border; (3) the usual patterns of traffic
on the particular road; (4) the previous experience of the agent with
alien traffic; (5) information about recent illegal border crossings in
the area; (6) the driver’s behavior, including any obvious attempts to
evade officers; (7) aspects of the vehicle, such as a station wagon
with concealed compartments; and (8) the appearance that the vehicle
is heavily loaded. A law enforcement officer may assess these
factors in light of his experience and specialized training and a court
should accord deference to an officer's ability to distinguish between
innocent and suspicious actions. Guided by these factors, the
ultimate assessment of reasonable suspicion depends on the totality
of the circumstances. In making that determination, a court may not
evaluate and reject each factor in isolation.
Id. at 1129-30 (citations omitted).
The district court concluded “[a] review of the totality of the circumstances
establishes that Agent Miranda had reasonable suspicion to stop the Ford and
detain [Quintana-Grijalva].” (R. Vol. I at 41.) It explained:
Agent Miranda encountered the Ford on a one-lane dirt road in a
sparsely populated area, located approximately thirty miles from the
international border. The Ford was traveling away from the border
area. Agent Miranda noticed the Arizona license plate and the fleet
tag, which indicated the Ford was a rental. Based on his previous
experience with alien traffic, Agent Miranda knew that smugglers
often utilize stolen and rental vehicles in order to avoid having their
personal vehicles confiscated. The registration check confirmed that
the Ford was registered to a rental company in Phoenix, Arizona.
Agent Miranda was familiar with local residents and patterns of
traffic. Agent Miranda knew that, only very rarely, did non-residents
use this very remote road. Agent Miranda recognized neither the
Ford nor its occupants. Although locals customarily stopped to
speak with passing vehicles on Perimeter Road, the Ford did not
stop. In fact, neither the driver nor the passenger turned to see how
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close they were to the Dodge when they passed by. Agent Miranda
had been advised that a vehicle matching the description of the Ford
had illegally entered the United States from Mexico. The occupants
of the Ford exhibited suspicious behavior. The driver and the
passenger of the Ford looked at the USBP agents, turned away, and
looked straight ahead. As Agent Miranda followed the Ford, the
driver watched Agent Miranda in the side mirror of the Ford. The
driver turned and talked to the passenger, and slowed almost to a
stop and started moving again.
(Id.)
Quintana-Grijalva challenges various factual findings of the district court
and the significance the court placed on those findings. While we will discuss
each of Quintana-Grijalva’s concerns, we are cognizant of the Supreme Court’s
instruction in United States v. Arvizu that Courts of Appeal should consider the
various factors as a whole and should not engage in a “divide-and-conquer
analysis.” 534 U.S. 266, 274 (2002). The Arvizu Court made clear “[a]
determination that reasonable suspicion exists . . . need not rule out the possibility
of innocent conduct.” Id. at 277. With this in mind, we consider Quintana-
Grijalva’s challenges.
First, Quintana-Grijalva claims Miranda “had no reason to believe that the
Ford he saw came from the border that day.” (Appellant’s Br. at 10.) He points
out Miranda encountered the Ford more than 30 miles from the border. Quintana-
Grijalva relies on United States v. Lopez, wherein the Fifth Circuit concluded
border patrol agents did not have reasonable grounds to believe the defendant
came from the border when he was first observed “some 55 miles from the
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border” and several small towns were situated between the border and the location
at which he was observed. 564 F.2d 710, 712 (5th Cir. 1977). The present case is
clearly distinguishable and other cases are more apt. See United States v.
Quintana-Garcia, 343 F.3d 1266, 1272 (10th Cir. 2003) (the fact defendant’s
vehicle was stopped “50-60 miles from the U.S.-Mexico border” was a
“legitimate consideration[ ] for [the border patrol agent] when making his
reasonable suspicion calculus”); see also United States v. Neufeld-Neufeld, 338
F.3d 374, 381 (5th Cir. 2003) (affirming denial of motion to suppress and finding
it “noteworthy that . . . [the defendant] was thirty-five miles from the border” at
the time he was stopped).
Second, Quintana-Grijalva challenges the significance of the 72-hour lane
check, which indicated the Ford had not crossed the border via a port of entry
during the 72 hours preceding the check. He points to cases in which the
government has argued a stop is justified by a recent border crossing and argues:
“To find that a lack of recent border crossings is equally suspicious puts the agent
in a ‘heads I win, tails you lose’ position.” (Appellant’s Br. at 21 (quoting
Gonzalez-Rivera v. INS, 22 F.3d 1441, 1447 (9th Cir. 1994).) The significance of
a recent border crossing, like any fact in the reasonable suspicion analysis,
depends on its context. See, e.g., Gandara-Salinas, 327 F.3d at 1131 (holding the
totality of the circumstances, including the fact defendant’s vehicle had crossed
the border the previous day, “supports a finding of reasonable suspicion of
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criminal activity justifying the stop”); Quintana-Garcia, 343 F.3d at 1272 (where
check of defendant’s vehicle revealed it had crossed the border approximately two
to three hours before being stopped by border patrol agent, holding “the brief
amount of time the vehicle had been in the country [was a] legitimate
consideration[ ] for [the agent] when making his reasonable suspicion analysis”).
Quintana-Grijalva’s argument fails to account for the fact that here, Miranda was
specifically on the look-out for a vehicle—very possibly a white Ford F-150
extended cab pickup truck—that had crossed illegally into the United States by
cutting through a fence. If the Ford had crossed illegally, it would not show up
on a 72-hour lane check. Thus, the fact the 72-hour lane check on Quintana-
Grijalva’s vehicle was negative should have increased, rather than decreased,
Miranda’s suspicion.
Third, Quintana-Grijalva contends Miranda (and the district court) placed
too much weight on the characteristics of the particular vehicle —specifically,
that it was a white Ford F-150 extended cab pickup truck. He argues: “The fact
that the agents may have learned that another F-150 in the area may have been
involved in transporting contraband does not add to the reasonable suspicion
calculus concerning this vehicle.” (Appellant’s Br. at 23.) He contends there
were many Ford vehicles in the area and “[t]he fact that an F-150 is a common
vehicle that may lend itself to transporting cargo cannot, without significantly
more, provide reasonable suspicion for an investigative stop.” (Id. at 22.)
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Quintana-Grijalva’s argument misses the mark. What was important here was not
simply that Quintana-Grijalva was driving a Ford F-150 extended cab pickup
truck; rather, the importance lay in the fact he was driving a vehicle in an
extremely remote area which precisely matched the description of the vehicle
observed crossing illegally into the United States the previous day. Surely, the
fact Miranda observed a vehicle exactly matching the description of the vehicle
for which he was looking is an appropriate factor to consider in the reasonable
suspicion analysis, especially since the area was rarely traveled.
Quintana-Grijalva also challenges the consideration given to the facts his
vehicle had Arizona license plates, it was registered to a rental agency in Phoenix,
his erratic driving, and his demeanor. Again, we afford the presence of out-of-
state license plates differing weight depending on the facts of the case. Compare
United States v. Martinez-Cigarroa, 44 F.3d 908, 911 (10th Cir. 1995)
(concluding border patrol agent’s observation of green out-of-state license plates
resembling Colorado plates on a car he did not recognize as a local vehicle did
not “contribute measurably to the [reasonable suspicion] analysis”); and United
States v. Monsisvais, 907 F.2d 987, 991 (10th Cir. 1990) (“[T]he record does not
enable us to attach any particular significance to the appearance of Arizona
license plates in this area.”) with United States v. Barbee, 968 F.2d 1026, 1029
(10th Cir. 1992) (concluding investigative stop of vehicle was proper where, inter
alia, “the vehicle had out-of-state, Texas license plates”); and United States v.
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Leyba, 627 F.2d 1059, 1064 (10th Cir. 1980) (holding the fact “the vehicle bore
out-of-state plates” is “entitled to some limited consideration because [the border
patrol agent] did not recognize the vehicle as local traffic from the area”).
Here, the Arizona license plates contributed to Miranda’s reasonable
suspicion. We must view the circumstances “through the eyes of a reasonable and
cautious police officer on the scene, guided by his experience and training.”
Leyba, 627 F.2d at 1063 (quotations omitted). Miranda testified that in his
approximately seven years as a USBP agent in the Lordsburg, New Mexico area,
he could not recall ever encountering a vehicle with Arizona plates on Perimeter
Road that was not involved in smuggling. In his experience, smugglers often
used rental vehicles and Phoenix was a common smuggling destination. We see
no error in the weight Miranda (and the district court) afforded to these facts.
Quintana-Grijalva contends “any erratic driving was caused by the agents’
following within a few car-lengths of the Ford on a remote highway” and “[h]is
behavior was consistent with an attempt to allow a closely following car to pass.”
(Appellant’s Br. at 24.) We have held cautious driving “cannot standing alone
support a reasonable suspicion of illegal activity.” United States v. Peters, 10
F.3d 1517, 1522 (10th Cir. 1993). But here, Miranda observed more than slow
driving. The occupants of the Ford did not stop to speak to the border patrol
agents when they passed the Dodge and did not check to see how close they were
to the Dodge when they passed by. They then looked at the agents, turned away
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and looked straight ahead. As Miranda began following them, he noticed
Quintana-Grijalva looking at Miranda out of his side mirror and turning to talk to
the passenger. While these facts alone would not support a finding of reasonable
suspicion, our review must be “guided by the principle that the circumstances
surrounding a stop are not to be dissected and viewed singly; rather, they must be
considered as a whole . . . . Each case must turn on the totality of the particular
circumstances.” Leyba, 627 F.2d at 1063 (quotations omitted); see also Arvizu,
534 U.S. at 274. Viewing the totality of the circumstances, we have no trouble
concluding Miranda had reasonable suspicion of criminal activity sufficient to
justify his attempted stop of Quintana-Grijalva’s vehicle.
Quintana-Grijalva abandoned the Ford and its contents before he was
seized. Therefore, his abandonment was voluntary. In any event, Miranda had
reasonable suspicion of criminal activity at the time he attempted to stop the Ford
for further investigation. As a result, Quintana-Grijalva lacks standing to
challenge the seizure of marijuana.
AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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