United States v. Ricardo Palos-Marquez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-50498
Plaintiff-Appellee,
v.  D.C. No.
3:08-cr-00547-JM-1
RICARDO IVAN PALOS-MARQUEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted
November 4, 2009—Pasadena, California
Filed January 19, 2010
Before: Mary M. Schroeder, Marsha S. Berzon, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
1249
1252 UNITED STATES v. PALOS-MARQUEZ
COUNSEL
Erick L. Guzman, Federal Defenders of San Diego, Inc., San
Diego, California, counsel for the appellant.
David L. Katz, Office of the United States Attorney, San
Diego, California, counsel for the appellee.
OPINION
IKUTA, Circuit Judge:
We must decide whether an in-person tip by an unidentified
informant provided reasonable suspicion to support border
patrol agents’ investigatory stop of a vehicle. We hold that
such a tip can have significant indicia of reliability, and in
light of the totality of the circumstances, there was reasonable
suspicion to justify the stop at issue. Therefore, we affirm the
judgment of the district court.
I
The investigatory stop at issue occurred on Otay Lakes
Road, which is an east-west road five miles north of the
United States/Mexican border in an area described as notori-
ous for alien smuggling. As United States Border Patrol
Agent Staunton drove around a sharp bend in the road, he saw
a dark-colored Dodge Ram pickup truck traveling west in his
eastbound lane. The pickup was attempting to pass a west-
bound UPS truck. Staunton veered to avoid a collision with
the pickup, which passed him and continued west. Staunton
testified the pickup was traveling “faster than normal” given
the conditions of the road.
When a UPS truck passed Staunton, its driver gestured to
get Staunton’s attention regarding the pickup. Staunton testi-
UNITED STATES v. PALOS-MARQUEZ 1253
fied that his knowledge of the area’s connection with alien
smuggling and the atypically fast speed at which the pickup
was traveling, coupled with the UPS driver’s gesture, caused
him to suspect that the pickup might be loaded with contra-
band. He radioed to Border Patrol intern1 agents Simon and
Martinez, who were situated farther west on the same road, to
be on the lookout for the pickup that was “driving erratically
[and] that almost ran [him] off the road.” Within seconds,
Simon radioed to Staunton that he had a visual of the truck.
One minute later, the UPS driver pulled over at Simon’s loca-
tion and reported that he had seen the pickup load up with
several suspected illegal aliens. Simon immediately radioed
back to Staunton, informing him of the UPS driver’s report.
Simon did not obtain the UPS driver’s name or license plate
number.
Staunton then put a call out over the radio to agents in the
area, describing the make and model of the pickup and the
UPS driver’s report. Within minutes of the broadcast, Agent
Padron saw the pickup traveling west on Otay Lakes Road at
a high rate of speed, as described by the report. When the
pickup stopped at the traffic light, an unmarked car of plain-
clothes Border Patrol agents (“BIC” agents) was able to pull
alongside it, and reported that its occupants looked “nervous
and shaky.” Approximately five minutes after Padron had first
seen the pickup, he and the other agents initiated a stop. They
found four illegal aliens in the pickup that Palos-Marquez was
driving.
Palos-Marquez was charged in a five-count indictment with
transportation of illegal aliens and aiding and abetting the
commission of that crime in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(II). Palos-Marquez moved to sup-
press the fact that illegal aliens were found in the pickup by
1
Agent Staunton testified that Border Patrol interns are agents still in
their probationary period, whom the senior agents watch over until they
pass their ten-month exam.
1254 UNITED STATES v. PALOS-MARQUEZ
arguing that the agents lacked reasonable suspicion to initiate
the stop. After an evidentiary hearing, the district court stated
that “in the words of Agent Staunton” the area was notorious
for alien smuggling and in close proximity to the border.
According to the district court, those facts, combined with the
pickup’s near accident with Staunton and the UPS driver’s
gesturing, put Staunton on notice that Palos-Marquez “could
be a load driver.” Taking into account Staunton’s initial suspi-
cions, coupled with the UPS driver’s “highly reliable” report
to Border Patrol agents that he had seen the pickup driver
“taking on a load of individuals by the side of the road,” the
district court held there was “more than reasonable suspicion”
to justify the stop, and denied the motion to suppress.
Pursuant to a plea agreement, Palos-Marquez pled guilty to
one count of the indictment, reserving the right to appeal the
district court’s ruling that there was reasonable suspicion for
agents to conduct the stop of his vehicle. Judgment was
entered and this timely appeal followed.
II
We review de novo whether there is reasonable suspicion
to justify a stop, United States v. Sigmond-Ballesteros, 285
F.3d 1117, 1121 (9th Cir. 2002), and the district court’s denial
of a motion to suppress, United States v. Bautista, 362 F.3d
584, 588-89 (9th Cir. 2004). The district court’s underlying
factual findings are reviewed for clear error. United States v.
Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004).
III
An investigatory stop does not violate the Fourth Amend-
ment “if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot.’ ” United
States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)). To determine whether a stop
was supported by reasonable suspicion, “we consider
UNITED STATES v. PALOS-MARQUEZ 1255
whether, in light of the totality of the circumstances, the offi-
cer had a ‘particularized and objective basis for suspecting the
particular person stopped of criminal activity.’ ” United States
v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007) (quot-
ing United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
A
[1] An officer may justify an investigatory stop based
solely or substantially on an informant’s tip, depending on its
reliability. At its most reliable, an informant’s tip alone may
sufficiently establish reasonable suspicion for a stop. Thus, in
Adams v. Williams, the Supreme Court held that where an
informant who had provided information in the past and was
known to the officer made an in-person tip “that an individual
seated in a nearby vehicle was carrying narcotics and had a
gun at his waist,” 407 U.S. 143, 145 (1972), the tip “carried
enough indicia of reliability to justify the officer’s forcible
stop” of the defendant, id. at 147. At the other end of the reli-
ability spectrum, the Court in Florida v. J.L. held that a tip
from an anonymous caller telephoning from an unknown
location, who reported only that “a young black male standing
at a particular bus stop and wearing a plaid shirt was carrying
a gun,” lacked any indicia of reliability and could not provide
reasonable suspicion for an investigatory stop. 529 U.S. 266,
268-69 (2000).
[2] When the tip is provided in a face-to-face encounter,
even when the informant is unidentified, we have deemed it
to be closer to the Adams end of this reliability spectrum. See
United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th
Cir. 1978). In Sierra-Hernandez, a Border Patrol agent was
approached by a man wearing overalls, a baseball cap, and
driving a late-model Mercedes Benz. Id. at 762. The man
pointed to a nearby pickup truck and said, “[t]he black pickup
truck just loaded with weed at the canebreak.” Id. The agent,
without asking the man for his name or other identifying
information, stopped the truck and discovered marijuana. Id.
1256 UNITED STATES v. PALOS-MARQUEZ
We held the in-person tip was sufficiently reliable to justify
the stop. Id. at 763-64. We reasoned that by “presenting him-
self to the agent and doing so while driving a car from which
his identity might easily be traced, the informant was in a
position to be held accountable for his intervention,” and the
“reliability of the information was thus increased.” Id. at 763.
[3] Courts have indicated that the in-person nature of a tip
gives it substantial indicia of reliability for two reasons. First,
as explained above, an in-person informant risks losing ano-
nymity and being held accountable for a false tip. See id.; see
also United States v. Romain, 393 F.3d 63, 73 (1st Cir. 2004);
United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000);
United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991).
Second, when a tip is made in-person, an officer can observe
the informant’s demeanor and determine whether the infor-
mant seems credible enough to justify immediate police
action without further questioning. See, e.g., United States v.
Heard, 367 F.3d 1275, 1279 (11th Cir. 2004); United States
v. Thompson, 234 F.3d 725, 729 (D.C. Cir. 2000); United
States v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000); United
States v. Robertson, 39 F.3d 891, 893 (8th Cir. 1994).
[4] Here, the UPS driver’s tip featured both of these key
indicia of reliability. The driver risked losing his anonymity
by speaking face-to-face with Agent Simon, who was able to
observe his appearance and affiliation with UPS, and who
could have asked the driver for identification had it seemed
necessary. Moreover, Simon could judge the UPS driver’s
demeanor and evaluate his credibility.
Other indicia present in this case are also relevant to deter-
mining the tip’s reliability. For example, if the unidentified
informant is a member of a small class of likely sources, we
have held that the “tip does provide the lawful basis for some
police action.” United States v. Terry-Crespo, 356 F.3d 1170,
1174 (9th Cir. 2004) (internal quotation marks omitted). In
United States v. Fernandez-Castillo, a Montana Department
UNITED STATES v. PALOS-MARQUEZ 1257
of Transportation (MDOT) employee radioed his dispatcher
“about an older model black Monte Carlo . . . whose driver
was ‘evidently driving quite erratically.’ ” 324 F.3d 1114,
1116 (9th Cir. 2003). The MDOT dispatcher then told the
highway patrol dispatcher that “one of our guys” called in
with the tip about the Monte Carlo. Id. A highway patrol offi-
cer subsequently stopped the vehicle and discovered over 500
grams of methamphetamine. Id. at 1116-17. We held that the
tip was reliable because the informant “could be held account-
able for fabricating any story” if the officer decided to follow
up and identify him, which was possible given the officer’s
knowledge of the informant’s place of employment. Id. at
1118. Therefore, “the concerns raised by anonymous tips”
that “the tipster cannot be held accountable for fabrications
and the tipster’s reputation cannot be assessed” were “simply
not present” in this context. Id.
[5] In this case, like in Fernandez-Castillo, the Border
Patrol agent knew that the informant was a UPS driver who
had worked a designated route at a certain time on the day of
Palos-Marquez’s stop. The agent could have reasonably con-
cluded that the UPS driver’s identity could be determined
with only a small amount of investigation. This increases the
reliability of the tip because the informant likely could be held
accountable if the information proved to be false.
Palos-Marquez argues that Sierra-Hernandez and
Fernandez-Castillo are distinguishable because the UPS
driver did not put his anonymity at risk to the same extent as
the informants in those cases. Palos-Marquez asserts that the
Sierra-Hernandez tipster had a “remarkable appearance” in
that he was wearing overalls and a hat, and was driving an
atypical car. In addition, Palos-Marquez claims that unlike the
tipster in Fernandez-Castillo, who was one of a very small
number of MDOT employees, the only information the agent
knew about the UPS driver was that he “works for a company
with 355,000 employees.”
1258 UNITED STATES v. PALOS-MARQUEZ
We disagree. Sierra-Hernandez never described the tip-
ster’s appearance as “remarkable” nor considered whether the
tipster could easily be found for follow-up questioning. See
581 F.2d at 763 (“Here, since the informant was not known
to the officer and cannot be traced, the officer’s testimony
cannot be corroborated.” (emphasis added)). We held that the
tip at issue in Sierra-Hernandez was reliable because the in-
person informant risked his anonymity, not because officers
were able to later track down the informant. See id.2 Nor is
Fernandez-Castillo distinguishable. Rather, the UPS driver is
like the informant in Fernandez-Castillo whose association
with an employer known to the agent indicated that his iden-
tity “could easily be ascertained by a simple inquiry” and the
informant could be held accountable for providing a false tip.
324 F.3d at 1118.
There are several other facts present here that weigh in
favor of the tip’s reliability. The UPS driver relayed his tip
near to where he had observed the events, and agents stopped
a pickup fitting the driver’s description within minutes of his
statement. We have held that if an unidentified informant’s tip
is “made contemporaneously with a complainant’s observa-
tions” the report is generally more reliable than those made
later in time. Id. at 1119. Furthermore, the UPS driver indi-
cated that he had first-hand knowledge of the crime when he
reported to Agent Simon that he had seen several suspected
illegal aliens load into the pickup. Thus, our observation that
an informant’s tip “is considered more reliable if the infor-
mant reveals the basis of knowledge of the tip—how the
informant came to know the information”—applies. United
States v. Rowland, 464 F.3d 899, 908 (9th Cir. 2006) (citation
omitted).
2
In any event, the argument that locating a UPS driver who was driving
a specific route at a certain time on a given day would be more difficult
than finding a man in overalls and a hat who drives a Mercedes Benz runs
contrary to common sense.
UNITED STATES v. PALOS-MARQUEZ 1259
[6] In sum, the UPS driver’s tip displayed significant indi-
cia of reliability that supported the agents’ formulation of “a
reasonable suspicion that criminal activity was occurring,”
Sierra-Hernandez, 581 F.2d at 762, particularly “in the light
of the surrounding circumstances” discussed below, id. at
764.
B
In addition to the in-person tip, we consider other facts
available to the officers to determine whether “in light of the
totality of the circumstances, the officer had a ‘particularized
and objective basis for suspecting the particular person
stopped of criminal activity.’ ” Berber-Tinoco, 510 F.3d at
1087 (quoting Cortez, 449 U.S. at 417-18). In the context of
border patrol stops, relevant facts include: “(1) characteristics
of the area; (2) proximity to the border; (3) usual patterns of
traffic and time of day; (4) previous alien or drug smuggling
in the area; (5) behavior of the driver, including ‘obvious
attempts to evade officers’; (6) appearance or behavior of pas-
sengers; (7) model and appearance of the vehicle; and, (8)
officer experience.” United States v. Garcia-Barron, 116 F.3d
1305, 1307 (9th Cir. 1997) (quoting United States v.
Brignoni-Ponce, 422 U.S. 873, 885 (1975)).
[7] Here, the agents relied on three facts in addition to the
in-person tip to support their reasonable suspicion. First,
Agent Staunton testified that the Otay Lakes Road area is “no-
torious not only for alien traffic to cross there through this
area, but also load vehicles—people to load up with illegal
aliens.” Second, the pickup was being driven erratically, at a
high rate of speed. Third, the BIC agents observed that the
pickup’s occupants appeared “nervous and shaky.”
Palos-Marquez argues that each of these factors is insuffi-
cient to create reasonable suspicion. According to Palos-
Marquez, the notoriety of a road as a smuggling corridor gen-
erally cannot be a relevant factor in determining whether rea-
1260 UNITED STATES v. PALOS-MARQUEZ
sonable suspicion exists because “nearly every road in the
Southern District of California is ‘notorious’ for smuggling,”
and roads such as Otay Lakes also carry legitimate traffic.
This argument must fail; the notoriety of a road as an alien
smuggling route has long been held by numerous courts,
including the Supreme Court, as a relevant factor supporting
reasonable suspicion. See, e.g., Brignoni-Ponce, 422 U.S. at
884-85 (listing “the characteristics of the area” and “previous
experience with alien traffic” on the road as factors to con-
sider in deciding whether there is reasonable suspicion to stop
a car); Berber-Tinoco, 510 F.3d at 1088 (finding Lyons Val-
ley Road “notorious” for smuggling); United States v. Diaz-
Juarez, 299 F.3d 1138, 1142 & n.2 (9th Cir. 2002) (finding
that Tierra del Sol Road was a “high-crime area,” which sug-
gested smuggling).
Palos-Marquez next argues that driving too fast for the road
conditions does not support a reasonable suspicion of alien
smuggling. We agree that Palos-Marquez’s traffic infractions
alone do not create a reasonable suspicion of transporting
aliens. See Fernandez-Castillo, 324 F.3d at 1120 (“It is per-
fectly understandable that swerving within one’s own lane of
traffic would not support reasonable suspicion of smuggling,
which has nothing to do with impairment,” but would support
reasonable suspicion that the driver was impaired.). But here
Agent Staunton stated that based on his experience, the pick-
up’s erratic driving on Otay Lakes Road, along with the UPS
driver’s gesture, caused him to suspect that the pickup was
smuggling contraband. As we stated in Berber-Tinoco, we
must give due credence to officers who “may make reason-
able deductions and inferences based on their experience and
specialized training that might well elude an untrained per-
son.” Berber-Tinoco, 510 F.3d at 1087 (quotation marks omit-
ted).
Finally, Palos-Marquez argues that the BIC agents’ obser-
vation that the pickup’s occupants appeared “nervous and
shaky,” occurred after he had been seized, and therefore can-
UNITED STATES v. PALOS-MARQUEZ 1261
not be included in the reasonable suspicion analysis. This is
incorrect, as the record indicates that the BIC agents’ observa-
tions were made prior to Palos-Marquez’s stop. Accordingly,
these observations provide another relevant consideration in
the reasonable suspicion equation. See Arvizu, 534 U.S. at 276
(holding that passenger conduct can be a factor supporting
reasonable suspicion); Brignoni-Ponce, 422 U.S. at 885 (stat-
ing that “the driver’s behavior may be relevant . . . [to] sup-
port a reasonable suspicion” that crime is afoot).
[8] We therefore reject Palos-Marquez’s attempt to dis-
credit individually each of the facts used by agents to deter-
mine if there was reasonable suspicion to initiate the stop.
Arvizu specifically “prohibits courts from adopting a ‘divide-
and-conquer analysis’ by looking at each factor in isolation
and according it no weight if it is susceptible to an innocent
explanation.” Berber-Tinoco, 510 F.3d at 1088 (quoting
Arvizu, 534 U.S. at 274). Instead, we must take a holistic
approach, and consider the totality of the circumstances, tak-
ing into account all of the facts in light of the others. See
Arvizu, 534 U.S. at 274. Under this test, even if the UPS driv-
er’s in-person tip was not sufficient in itself to give the offi-
cers reasonable suspicion, the tip along with the agents’
knowledge that the area is notorious for alien smuggling, that
the pickup was being driven at a high rate of speed, and that
the vehicle’s occupants were visibly nervous, was enough to
support the investigatory stop.
IV
[9] Today we reaffirm our holding in Sierra-Hernandez
that “[i]nformation from a citizen who confronts an officer in
person to advise that a designated individual . . . is commit-
ting a specific crime” displays significant indicia of reliabil-
ity. 581 F.2d at 763. Because the UPS driver’s in-person tip
had such indicia of reliability, and in light of the notoriety of
the area for alien smuggling, the pickup’s high rate of speed,
and the pickup occupants’ nervous demeanor, there was more
1262 UNITED STATES v. PALOS-MARQUEZ
than enough evidence to “paint a picture that would create in
the mind of a trained border patrol agent a reasonable suspi-
cion that the [vehicle’s occupants were] engaged in criminal
activity.” United States v. Guzman-Padilla, 573 F.3d 865, 882
(9th Cir. 2009) (quotation and citation omitted). Therefore,
the officers’ investigatory stop of the vehicle driven by Palos-
Marquez did not violate the Fourth Amendment.
AFFIRMED.