United States v. Manzp-Jurado

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30186
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00169-SEH
SERGIO MANZO-JURADO,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
April 5, 2006—Seattle, Washington
Filed June 20, 2006
Before: William C. Canby, Jr., Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea;
Dissent by Judge Gould
6833
UNITED STATES v. MANZO-JURADO 6837
COUNSEL
Anthony R. Gallagher, Assistant Federal Defender, Federal
Defenders of Montana, Great Falls, Montana, for the
defendant-appellant.
William W. Mercer, United States Attorney, and Elizabeth
Horman, Assistant United States Attorney, United States
Attorney’s Office, Helena, Montana, for the plaintiff-appellee.
OPINION
BEA, Circuit Judge:
We revisit the important issue of when information avail-
able to officers creates a reasonable suspicion that an individ-
ual is in the United States illegally so as to justify an
investigatory stop. Given the particular facts of this case—
individuals’ appearance as a Hispanic work crew, inability to
speak English, proximity to the border, and unsuspicious
behavior—law enforcement lacked reasonable suspicion that
Appellant and his co-workers were in this country illegally.
I.
On November 20, 2004, Manzo-Jurado and five of his co-
workers attended the high school football state championship
game between Havre High School and Billings Central High
School in Havre, Montana. Manzo-Jurado and his co-workers
stood together by a fence and conversed in Spanish.
During the second half of the game, a Havre police officer,
Officer Robinson, noticed Manzo-Jurado and his co-workers.
6838 UNITED STATES v. MANZO-JURADO
Thinking they might be illegal aliens, Robinson called the
United States Border Patrol. Border Patrol Agent David
Bischoff responded to the call and drove his patrol unit into
the stadium. The Border Patrol dispatcher informed Bischoff
that the group was not creating any problems and did not
appear to be doing anything illegal.
Robinson also spoke with Border Patrol Agent Arlin Kaul
who, while off duty, was watching the game with his wife.
Kaul had not noticed the men until Robinson brought them to
his attention. When Bischoff arrived at the stadium, Kaul and
Bischoff walked behind the bleachers, glanced quickly at the
Hispanic men, and decided to conduct a field interview in a
more private setting than the football game. Bischoff (uni-
formed, and on duty) and Kaul (not in uniform, and off duty)
then parted ways.
Upon leaving Bischoff, Kaul approached the group of His-
panic men to get a better look. Whereas Robinson had men-
tioned six men, Kaul noticed only four. Kaul observed the
men speaking in Spanish to each other. They did not mingle
with the other attendees, they were unaccompanied by family
members, they appeared to comprise a work crew, and they
did not cheer for one team or the other. While Kaul was
observing the men, Bischoff returned to his Border Patrol car
and positioned it on a street near the stadium.
Sometime before Kaul approached the group to get a better
look, with about ten to twenty minutes left in the game,
Manzo Jurado and another member of his group, Pedro San-
tos, had left the game to get out of the cold. As they left the
stadium, they walked past their vehicle—a truck owned by
Polaris, their employer—and passed Bischoff’s marked Bor-
der Patrol car. About one block later, they turned around and
headed back, again passing the Border Patrol car. Manzo-
Jurado and Santos noticed Bischoff’s Border Patrol car both
times they passed it. They found where they had parked, got
UNITED STATES v. MANZO-JURADO 6839
in the truck, started it, turned it around, and remained on the
same street with the engine running.
Fifteen or twenty minutes later, Manzo-Jurado and Santos
were joined by their four remaining co-workers. At that point,
Kaul approached the driver’s-side door of the truck while FBI
Agent Stacy Smiedala1 walked to the back of the truck, drew
her gun from her ankle holster, and approached the passenger-
side door.2 Kaul first addressed the passengers in English but,
when he received no verbal response, he identified himself in
Spanish as a Border Patrol agent, using the slang term “la
migra.” At some point, Kaul reached into the truck and turned
off the engine. Kaul also told the men, in Spanish, to keep
their hands where the agents could see them. Kaul asked the
men where they were from and whether they had immigration
documents. Whereas five members of the group stated that
they were from El Salvador and had immigration documents,
Manzo-Jurado stated that he was from Mexico and did not
have such documents.
The agents immediately placed Manzo-Jurado under arrest.
Several other Border Patrol vehicles arrived on the scene and,
after Bischoff learned from Kaul that Manzo-Jurado was ille-
gal, Bischoff took over the investigation. Manzo-Jurado was
taken to the station for processing.
About a week after Manzo-Jurado’s arrest, Border Patrol
agents contacted Polaris and received copies of documents
that Manzo-Jurado had used to gain employment. Further
investigation revealed that Manzo-Jurado’s social security
1
During the game, Kaul had approached Smieldala, who was also off
duty, and had requested back-up for the investigatory stop because Kaul
was unarmed. Smieldala observed the group of Hispanic men only after
Kaul pointed them out to her and her observations of the group did not add
anything to Kaul’s testimony.
2
One of Manzo-Jurado’s co-workers testified to having seen Smiedala’s
drawn gun, but Manzo-Jurado testified he had not seen the gun.
6840 UNITED STATES v. MANZO-JURADO
card was counterfeit, and a criminal complaint was filed
against him, charging him with misuse of a social security
number in violation of 42 U.S.C. § 408(a)(7)(B). Manzo-
Jurado was arraigned in district court on December 21, 2004.
On January 12, 2005, Manzo-Jurado filed a motion to sup-
press all evidence derived from his arrest. He argued that the
agents had lacked reasonable suspicion to justify the investi-
gatory stop that had revealed his illegal status. The district
court held a hearing on February 9, 2005, and denied Manzo-
Jurado’s motion. The district court held that Manzo-Jurado
had not been subjected to full-blown arrest until after admit-
ting his illegal status, and that reasonable suspicion had justi-
fied the investigatory stop. In addition, the district court found
that, even if the agents had lacked reasonable suspicion to
stop Manzo-Jurado, Manzo-Jurado’s motion would fail
because identity evidence is not suppressible.
The parties agreed to a trial by stipulated facts, which took
place on February 22, 2005. The district court found Manzo-
Jurado guilty and sentenced him to time served, followed by
two years of supervised release. This timely appeal followed.
II.
The reasonable suspicion inquiry is a question of mixed
law and fact, and we review it de novo. United States v.
Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2001).
III.
[1] The Fourth Amendment requires that, before officers
conduct an investigatory stop of an individual, they must have
reasonable suspicion the individual has, or is about to have,
committed a crime.3 United States v. Brignoni-Ponce, 422
3
At oral argument, the Government conceded that Manzo-Jurado was
seized within the meaning of Terry v. Ohio, 392 U.S. 1 (1968), and its
progeny, so as to require reasonable suspicion.
UNITED STATES v. MANZO-JURADO 6841
U.S. 873, 884 (1975). Pursuant to Terry v. Ohio, 392 U.S. 1
(1968), the Supreme Court in Brignoni-Ponce held that,
“when an officer’s observations lead him reasonably to sus-
pect that a particular vehicle may contain aliens who are ille-
gally in the country, he may stop the car briefly and
investigate the circumstances that provoke suspicion.” 422
U.S. at 881. In United States v. Arvizu, 534 U.S. 266, 273-74
(2002), the Supreme Court’s most recent opinion regarding
the reasonable suspicion standard for investigatory stops, the
Court explained:
[W]e have said repeatedly that [reviewing courts]
must look at the “totality of the circumstances” of
each case to see whether the detaining officer has a
“particularized and objective basis” for suspecting
legal wrongdoing. This process allows officers to
draw on their own experience and specialized train-
ing to make inferences from and deductions about
the cumulative information available to them that
“might well elude an untrained person.” 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 prepon-
derance of the evidence standard.
Id. (internal citations omitted).
[2] At the same time, we will defer to officers’ inferences
only when such inferences rationally explain how the objec-
tive circumstances “arouse[d] a reasonable suspicion that the
particular person being stopped ha[d] committed or [was]
about to commit a crime.” United States v. Montero-
Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (en banc).
“[W]hile an officer may evaluate the facts supporting reason-
able suspicion in light of his experience, experience may not
be used to give the officers unbridled discretion in making a
stop.” See id. at 1131 (quoting Nicacio v. INS, 797 F.2d 700,
6842 UNITED STATES v. MANZO-JURADO
705 (9th Cir. 1986)). Accordingly, to establish reasonable sus-
picion, an officer cannot rely solely on generalizations that, if
accepted, would cast suspicion on large segments of the law-
abiding population. See, e.g., Sigmond-Ballesteros, 285 F.3d
at 1121; Montero-Camargo, 208 F.3d at 1129-33; United
States v. Rodriguez, 976 F.2d 592, 595-96 (9th Cir. 1992).
Seemingly innocuous behavior does not justify an investiga-
tory stop unless it is combined with other circumstances that
tend cumulatively to indicate criminal activity.4 Montero-
Camargo, 208 F.3d at 1130.
[3] The Supreme Court in Brignoni-Ponce outlined a list of
factors that “may be taken into account in deciding whether
there is reasonable suspicion to stop a car in the border area.”
422 U.S. at 884-85.5 An individual’s apparent Hispanic eth-
4
In rejecting the Government’s argument that an investigatory stop was
supported by reasonable suspicion, we explained in Rodriguez:
The agents tender to us the picture of innocent driving behavior
but ask us to accept it as signifying criminal behavior to a trained
and experienced eye. This we cannot do. Innocents, as well as
criminals, sometimes keep their hands on the wheel and feet in
the vehicle. Innocents, as well as criminals, drive vehicles which
are as they are because many people will buy them including a
space behind the seat in which a person or luggage might fit. The
agents asserted that they had seen a photo of a similar vehicle
which had been used in a smuggling operation at some unknown
place and time. We may confidently assert that all types of vehi-
cles have been used in smuggling operations at some place.
976 F.2d at 596.
5
The Supreme Court in Brignoni-Ponce explained:
Officers may consider the characteristics of the area in which
they encounter a vehicle. Its proximity to the border, the usual
patterns of traffic on the particular road, and previous experience
with alien traffic are all relevant. They also may consider infor-
mation about recent illegal border crossings in the area. The driv-
er’s behavior may be relevant, as erratic driving or obvious
attempts to evade officers can support a reasonable suspicion.
Aspects of the vehicle itself may justify suspicion. . . . The Gov-
UNITED STATES v. MANZO-JURADO 6843
nicity, although a relevant factor in the reasonable suspicion
inquiry, cannot by itself justify an investigatory stop in a bor-
der area.6 Id. at 886-87. Beyond the group members’ apparent
Hispanic ethnicity, the Government here argues that several
other factors aroused the agents’ reasonable suspicion that one
or more of the group members were in this country illegally:
the group’s proximity to the Canadian border, the group mem-
bers’ conversing with each other in Spanish, the group’s con-
duct at the game, the group’s appearance as a work crew, and
Manzo-Jurado’s evasive behavior. We address each factor in
turn, and then collectively.
A.
[4] The group’s location near the Canadian border was rele-
vant to establishing reasonable suspicion. “[P]roximity to the
border may be considered as a factor in the reasonable suspi-
cion calculus.” United States v. Diaz-Juarez, 299 F.3d 1138,
1142 (9th Cir. 2002). Although we typically address such fac-
tor in relation to the Mexican border,7 we have also held that
ernment also points out that trained officers can recognize the
characteristic appearance of persons who live in Mexico, relying
on such factors as the mode of dress and haircut. In all situations
the officer is entitled to assess the facts in light of his experience
in detecting illegal entry and smuggling.
Brignoni-Ponce, 422 U.S. at 884-85.
6
In Montero-Camargo, we held that, in regions heavily populated by
Hispanics, an individual’s apparent Hispanic ethnicity is not a relevant
factor in the reasonable suspicion calculus. 208 F.3d at 1132. Such holding
is inapplicable here because Havre, Montana is sparsely populated with
Hispanics. See United States Census Bureau, Profile of General Demo-
graphic Characteristics: 2000, Havre city, Montana, available at http://
censtats.census.gov/data/MT/1603035050.pdf (indicating that Hispanics
comprise 1.5 percent of the Havre population).
7
Whereas Border Patrol intercepted 1,139,282 illegal immigrants in
southwest sectors located near the Mexican border, it intercepted only
9,959 illegal immigrants in sectors located near the Canadian border. See
Office of Immigration Statistics, Dep’t of Homeland Security, 2004 Year-
book of Immigration Statistics 156 (2005), available at http://www.uscis.
gov/graphics/shared/statistics/yearbook/Yearbook2004.pdf.
6844 UNITED STATES v. MANZO-JURADO
proximity to the Canadian border supports reasonable suspi-
cion. See United States v. Tiong, 224 F.3d 1136, 1139 (9th
Cir. 2000). It is reasonable to presume that illegal immigrants
can reach U.S. locations near points of entry more easily than
they can reach locations within this country’s interior. See id.
That Border Patrol stopped Manzo-Jurado and the other group
members in Havre, Montana, about forty-seven miles south of
the Canadian border, is a relevant factor in the reasonable sus-
picion calculus.
[5] Nonetheless, the significance of the group’s location is
not overriding here because the record does not establish that
Havre, in general, or the football stadium, in particular, are
locations notorious for containing illegal immigrants. Offi-
cers’ suspicion or awareness that a particular location or route
is used predominantly for illegal purposes—including illegal
immigration—is strong support for a finding of reasonable
suspicion. See Arvizu, 534 U.S. at 269, 277 (finding it signifi-
cant that officers found the defendant on an unpaved road
“very rarely traveled except for use by local ranchers and for-
est service personnel,” but commonly used by smugglers to
avoid a nearby border checkpoint); United States v. Urias,
648 F.2d 621, 622-23 (9th Cir. 1981) (finding that officers
had reasonable suspicion to stop a pickup-camper after the
defendant turned onto a dirt road leading to a state fish hatch-
ery when “in [the officer’s] experience about 75% of the vehi-
cles [unfamiliar to the officers] that turned there . . . were
carrying illegal aliens attempting to avoid [a nearby] check-
point”). By contrast, a location or route frequented by illegal
immigrants, but also by many legal residents, is not signifi-
cantly probative to an assessment of reasonable suspicion. See
Sigmond-Ballesteros, 285 F.3d at 1124 (reasoning that the
defendant’s location on a highway commonly used for alien
smuggling was of only “minimal significance” because the
court presumed the great majority of people who used the
highway were lawfully present in this country). Here, the
agents did not testify that either Havre or the football stadium
were locations notorious for containing illegal immigrants.
UNITED STATES v. MANZO-JURADO 6845
Kaul testified that hundreds of people attended the Montana
state championship football game, but he did not testify that
he, or any other Border Patrol agent, had discovered illegal
immigrants at the stadium. Therefore, Havre’s proximity to
the Canadian border only minimally supports reasonable sus-
picion.
B.
[6] That the group members spoke to each other exclu-
sively in Spanish and did not understand English is also rele-
vant to the reasonable suspicion inquiry. An individual’s
inability to speak English may support an officer’s reasonable
suspicion that the individual is in this country illegally.
United States v. Contreras-Diaz, 575 F.2d 740, 745 (9th Cir.
1978). By itself, however, an individual’s inability to under-
stand English will not justify an investigatory stop because
the same characteristic applies to a sizable portion of individ-
uals lawfully present in this country. See Sigmond-
Ballesteros, 285 F.3d at 1126-27. Here, the agents noticed
that the group members were speaking to each other only in
Spanish. In addition, the group members did not understand
what Kaul was saying to them until Kaul began to speak to
them in Spanish. Such information, while not dispositive, may
support a finding of reasonable suspicion when other factors
suggest that the individuals stopped are present in this country
illegally. See Montero-Camargo, 208 F.3d at 1130.
C.
[7] The agents’ observation that the group members
appeared out of place at the football game has no relevance
to establishing reasonable suspicion because nothing suggests
such behavior indicates an individual’s illegal status in this
country. Observations so ambiguous that they bear little rela-
tionship to any sort of criminality have low, if any, probity
toward finding reasonable suspicion. See Gonzalez-Rivera v.
INS, 22 F.3d 1441, 1446-48 (9th Cir. 1994) (disregarding as
6846 UNITED STATES v. MANZO-JURADO
a matter of law an officer’s observations of the defendant—
that the defendant failed to look at the officer, appeared ner-
vous because he had a dry mouth, and blinked excessively—
because such observations “had such a low probative value
that no reasonable officer would have relied on them to deter-
mine whether there was reasonable suspicion to make an
investigative stop”). Kaul testified that the group members
appeared out place at the football game because they did not
mingle with other attendees, did not appear associated with
either high school, did not have other family members with
them, and were not familiar to him.8 Kaul’s “unsupported
intuition” that a group of men keeping to themselves at a foot-
ball game is indicative of the men’s illegal status in this coun-
try is not a rational inference that helps establish reasonable
suspicion. See id. at 1446 (quoting United States v. Mallides,
473 F.3d 859, 862 (9th Cir. 1973)).
D.
[8] The group’s appearance as a work crew is marginally
relevant to establishing reasonable suspicion. A characteristic
common to both legal and illegal immigrants does little to
arouse reasonable suspicion. See Sigmond-Ballesteros, 285
F.3d at 1125 (reasoning that the defendant’s driving a pick-up
truck in an agricultural area was “not particularly probative”
because, although the “[d]efendant’s vehicle len[t] itself to
alien smuggling,” pick-ups are also “commonly used by those
who are engaged in agricultural work”). Here, the district
court found it “significant . . . that [Kaul] observed [the]
group of men conducting themselves as a work crew.” The
district court also found Kaul was justified in relying upon his
experience “that migrant work crews in the Havre area . . .
were frequently made up of foreign nationals, and on occasion
8
Although an officer’s lack of familiarity with an individual may be rel-
evant when the officer is familiar with all the local residents who use a
sparsely traveled route, see Urias, 648 F.2d at 622, such factor is irrele-
vant at a well-attended football game that includes fans from a distant city.
UNITED STATES v. MANZO-JURADO 6847
included illegal aliens.”9 However, neither Kaul nor Bischoff
discussed the proportion of work crews in Havre that have
illegal aliens. Although in Havre Border Patrol had encoun-
tered “numerous” work crews with illegal aliens, Kaul did not
testify about how many work crews Border Patrol had
encountered in Havre that did not have illegal aliens.10 Impor-
tantly, neither Kaul nor Bischoff testified that they knew the
group’s employer, Polaris, had employed illegal employees in
Havre. Without such particularized information, the group’s
9
At the suppression hearing, Kaul testified, “[Border Patrol has]
encountered numerous work crews in Havre that employ illegal aliens. In
some cases, all illegal aliens. In other cases, one or two illegal aliens in
the group of workers.” Also at the suppression hearing, Bischoff testified,
“Very often in the workers that we have encountered [in Havre], there’s
very often aliens in the group, whether illegal or not . . . until you’ve
talked [to them], you don’t know . . . .”
10
The dissent concludes that reasonable suspicion existed here because
of the deference we owe to the “skilled judgment of immigration offi-
cials.” We agree that officials’ skilled judgment plays a significant role in
determining whether there was reasonable suspicion. Nonetheless, in this
situation, Kaul’s and Bischoff’s testimony regarding their prior encounters
with works crews in Havre which had contained illegal immigrants does
not explain how their experience and expertise led to a reasonable infer-
ence of criminality that “might well elude an untrained person.” See
Arvizu, 534 U.S. at 273. Kaul testified that Havre Border Patrol had
encountered “numerous” work crews which contained illegal immigrants.
However, such testimony would apply equally to situations where Havre
Border Patrol had encountered five out of six work crews which contained
illegal immigrants or five out of one-thousand. In fact, when asked about
how likely it was that a given work crew in Havre contained an illegal
immigrant, Bischoff candidly responded that “you don’t know until you
talk to [the crew members].”
Nor do we reason that a group’s appearance as a work crew can never
be substantially probative of group members’ illegal status within this
country; rather, we find that the officers’ testimony here was too conclu-
sory to support substantially that the stop was based on reasonable infer-
ences rather than subjective impressions. See Montero-Camargo, 208 F.3d
at 1131 (“[A]n officer’s experience may furnish the background against
which the relevant facts are to be assessed, as long as the inferences he
draws are objectively reasonable; but ‘experience’ does not in itself serve
as an independent factor in the reasonable suspicion analysis.”).
6848 UNITED STATES v. MANZO-JURADO
appearance as a work crew is a “broad profile[ ]” insufficient
by itself to satisfy the reasonable suspicion standard. See
United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th
Cir. 1994), overruled in part on other grounds by Montero-
Camargo, 208 F.3d at 1131-32.
E.
Manzo-Jurado’s behavior at and nearby the stadium weighs
against a finding of reasonable suspicion. The totality of cir-
cumstances test takes into account both factors weighing for
and against reasonable suspicion. See Gonzalez-Rivera, 22
F.3d at 1447. The Government claims that Manzo-Jurado
attempted to evade Border Patrol by leaving the game early,
by changing course when he saw Bischoff outside the sta-
dium, and by moving the employer’s truck before the rest of
the group arrived. However, the undisputed facts in the record
paint a different picture.11 Manzo-Jurado left the game early.
The agents did not have any reason to know whether Manzo-
Jurado was aware of their presence. When Manzo-Jurado
passed the truck and walked right past Bischoff’s Border
Patrol car, Manzo-Jurado did not attempt to escape but rather
turned around and walked past the Border Patrol car a second
time on his way to sitting in the Polaris truck. Finally, after
Manzo-Jurado saw Bischoff in the Border Patrol car, he
waited fifteen to twenty minutes inside the truck for his
friends. If we were to accept such conduct as suspicious, it
would be “difficult to imagine what [Manzo-Jurado] could
have done . . . that might not have appeared suspicious to a
Border Patrol agent.” Montero-Camargo, 208 F.3d at 1136.
11
Because Border Patrol was not aware that Manzo-Jurado had moved
the truck before stopping him, such conduct is not relevant to the reason-
able suspicion calculus. See Brignoni-Ponce, 422 U.S. at 884 (stating that,
for officers to conduct an investigatory stop, they must be “aware of spe-
cific articulable facts, together with rational inferences from those facts,
that reasonably warrant suspicion” (emphasis added)).
UNITED STATES v. MANZO-JURADO 6849
F.
[9] Taken together, the facts available to Kaul before the
stop did not establish a reasonable basis for a particularized
suspicion that any of the group members were illegal immi-
grants. Although an officer, to form a reasonable suspicion of
criminality, may rely in part on factors composing a broad
profile, he must also observe additional information that win-
nows the broad profile into an objective and particularized
suspicion of the person to be stopped. See Diaz-Juarez, 299
F.3d at 1142-43; Rodriguez-Sanchez, 23 F.3d at 1493.
In Diaz-Juarez, we reasoned that an officer’s initial suspi-
cion of the defendant, “while itself insufficient to justify the
investigatory stop . . . ripened into reasonable suspicion as
[the officer] observed [the defendant’s] unusual car and driv-
ing behavior.” 299 F.3d at 1142-43. The officer in Diaz-
Juarez first became suspicious when, after receiving reports
that contraband was ready to cross the Mexican border, he
observed the defendant driving at an unusually late time on a
route “known for illegal alien crossings and smuggling activi-
ty.” Id. at 1140. Although these objective facts were relevant,
they could not arouse a reasonable suspicion absent additional
information characteristic of illegal activity. See id. at 1142.
The officer then observed the defendant speeding up and
slowing down, consistent with a person unfamiliar with the
area, and noted the defendant’s car had modified suspension
and bounced erratically over small bumps, “common charac-
teristics of vehicles used for smuggling.” Id.
Similarly, in Rodriguez-Sanchez, we found that an officer
might not have had reasonable suspicion had he relied solely
on a list of factors forming a broad profile, but that combined
with more particularized facts such factors justified the inves-
tigatory stop. 23 F.3d at 1493. The defendant’s Hispanic
appearance, location on a route notorious for alien smuggling,
lack of eye contact, and use of a car favored by alien smug-
glers were not enough by themselves to establish reasonable
6850 UNITED STATES v. MANZO-JURADO
suspicion. See id. That the defendant drove during a Border
Patrol shift change, locked his arms in an unusual position on
the steering wheel, rapidly exited the border checkpoint, and
changed lanes quickly without signaling formed a “weak
inference that the driver was engaged in illegal activity,” and
“if this were all the evidence we would have [had] a very dif-
ficult decision.” Id. However, when the officer’s car
approached the defendant, the defendant evasively cut across
two lanes of traffic to exit the freeway. Id. Such driving
behavior distinguished the defendant from the normal lawful
individual and, together with all the other factors, sufficed to
arouse a reasonable suspicion. Id.
[10] Unlike the officers in Diaz and Rodriguez-Sanchez,
who observed particularized conduct that corroborated their
initial suspicions, the agents here lacked information beyond
factors forming a broad profile that would cover many lawful,
newly-arrived immigrants. Kaul observed a group of
Hispanic-looking men, who appeared to be in a work crew,
calmly conversing in Spanish to each other. When deciding
whether to conduct an investigatory stop, Border Patrol could
rely in part on the group’s proximity to the border, apparent
ethnicity, inability to speak English, and appearance as being
a work crew. However, Border Patrol was aware of no addi-
tional information distinguishing any group member from an
ordinary, lawful immigrant. After Manzo-Jurado noticed the
Border Patrol car, he simply got into the truck and waited for
his friends.12 Accordingly, we hold that, under the particular
circumstances of this case, Border Patrol lacked reasonable
suspicion to stop Manzo-Jurado and his co-workers.
12
Of course, such unsuspicious conduct does not rule out the possibility
that an illegal immigrant is attempting to pretend he has nothing to hide.
However, the Government provides no evidence establishing that, in the
particular context of this case, Manzo-Jurado attempted to placate the Bor-
der Patrol’s suspicion in such a way. See Montero-Camargo, 208 F.3d at
1130.
UNITED STATES v. MANZO-JURADO 6851
IV.
[11] The Government claims that, even if Border Patrol did
not have reasonable suspicion to justify its stop, the insup-
pressible nature of identity evidence and the inevitable dis-
covery doctrine permitted the admission of evidence
regarding Manzo-Jurado’s fake social security card. “[A]
criminal defendant cannot suppress his identity, even when
there has been some prior illegality on the part of the govern-
ment.” United States v. Ortiz-Hernandez, 427 F.3d 567, 577
(9th Cir. 2005), en banc rehearing denied, 441 F.3d 1061 (9th
Cir. 2006). The inevitable discovery doctrine allows the
admission of evidence that otherwise would be suppressed as
the fruit of an illegal search if such evidence would have been
inevitably discovered even if the illegal search had not taken
place. See Nix v. Williams, 467 U.S. 431, 440-44 (1984).
Here, Manzo-Jurado is not attempting to suppress his identity;
he is attempting to suppress evidence that he used a fake
social security card to gain employment. Also, the record does
not establish that, had Kaul not stopped and questioned
Manzo-Jurado, the Border Patrol would have telephoned
Polaris anyway and discovered Manzo-Jurado’s use of the
fake card. See id. at 444 (stating that the inevitable discovery
doctrine permits the admission of illegally obtained evidence
when “the prosecution can establish by a preponderance of
the evidence that the information ultimately or inevitably
would have been discovered by lawful means”). Thus, we
have no difficulty rejecting the Government’s claim.
V.
[12] We reverse the district court’s order denying Manzo-
Jurado’s motion to suppress, and we remand the case for pro-
ceedings consistent with this opinion.
REVERSED AND REMANDED.
6852 UNITED STATES v. MANZO-JURADO
GOULD, Circuit Judge, dissenting:
The majority opinion concludes that the factors at issue in
this case did not give a particularized and objective basis for
the agents’ reasonable suspicion that any member of Manzo-
Jurado’s group was an illegal immigrant, and thus that the
temporary seizure of the vehicle and questioning of its occu-
pants was unconstitutional. However, our assessment of
whether a detaining officer has such a basis must take into
consideration the officer’s inferences from the information
available to him or her, even when those inferences might
elude a person without similar experience and training. See
United States v. Arvizu, 534 U.S. 266, 274 (2002); United
States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975). I view
the Supreme Court’s language in Arvizu to require some
degree of deference to the skilled judgment of immigration
officials.
In light of this, although it may be a close case, I would
hold that the agents’ familiarity with the Havre community;
their observation of a group of Hispanic-looking men at a
football game who appeared to be a work-crew and were
speaking only to each other, and only in Spanish; and the
agents’ particularized knowledge that work crews in the area
“were frequently made up of foreign nationals, and on occa-
sion included illegal aliens” established the requisite reason-
able suspicion to warrant the seizure and questioning. The
seizure and questioning doubtless would be of only minimal
impact on all the subjects, except Appellant, who after the
brief seizure of the vehicle by delaying it could have
responded that they were lawfully in the United States. The
impact on Appellant of giving a truthful answer to the agents’
query about papers was a consequence of his illegal presence
in the United States; his interest in maintaining a covert illegal
presence is not one to which our constitutional law needs give
primacy under these circumstances. The intrusion on privacy
of all these individuals, including Appellant, was minimal and
UNITED STATES v. MANZO-JURADO 6853
the law enforcement needs to control illegal immigration are
significant.
I respectfully dissent.