United States v. Rufino Valdes-Vega

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-50249
Plaintiff-Appellee, D.C. No.
v.  5:09-cr-00024-
RUFINO IGNACIO VALDES-VEGA, VAP-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
December 5, 2011—Pasadena, California
Filed July 25, 2012
Before: Harry Pregerson and Mary H. Murguia,
Circuit Judges, and Suzanne B. Conlon, District Judge.*
Opinion by Judge Pregerson;
Dissent by Judge Conlon
*The Honorable Suzanne B. Conlon, District Judge for the U.S. District
Court for Northern Illinois, sitting by designation.
8441
8444 UNITED STATES v. VALDES-VEGA
COUNSEL
Gretchen Fusilier, Carlsbad, California, for the defendant-
appellant.
Daniel Ackerman, Assistant United States Attorney, River-
side, California, for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge:
Defendant Rufino Ignacio Valdes-Vega (“Valdes-Vega”)
appeals the district court’s denial of his motion to suppress
cocaine found in his truck. Valdes-Vega contends that the
UNITED STATES v. VALDES-VEGA 8445
stop of his truck by Border Patrol Agents 70 miles north of
the U.S.-Mexico Border violated the Fourth Amendment, and
consequently, the cocaine found in his truck must be sup-
pressed. We agree. The totality of the circumstances in this
case did not provide Border Patrol Agents with reasonable
suspicion to believe that Valdes-Vega was smuggling drugs or
aliens. Accordingly, we reverse the district court’s denial of
Valdes-Vega’s motion to suppress.
BACKGROUND
A. The Stop of Valdes-Vega’s Truck
On January 21, 2009, Border Patrol Agent Luis Lopez was
conducting surveillance in an unmarked vehicle on the north-
bound shoulder of Interstate 15 (“I-15”), near Fallbrook, Cali-
fornia, approximately 70 miles north of the U.S.-Mexico
Border. At approximately 2:00 p.m., Agent Lopez observed a
red Ford F-150 pickup truck in the far right northbound lane
“traveling faster than the flow of traffic.” Agent Lopez began
to follow the truck. While he was following the truck, Agent
Lopez observed the truck make “erratic lane changes without
signaling.” As Agent Lopez followed the truck, he noticed the
truck had Baja California license plates. Eventually, Agent
Lopez lost sight of the truck because it was moving too
quickly and was “weaving in and out of traffic.” Agent Lopez
then notified Border Patrol Agent Jeffrey Hays of his observa-
tions and asked Agent Hays to provide assistance.
Agent Hays was on patrol in a marked vehicle when he
received Agent Lopez’s request for assistance. After speaking
with Agent Lopez, Agent Hays entered I-15 at Mission Road,
headed northbound, and attempted to catch up with the truck.
Agent Hays eventually caught up with the truck just south of
the Temecula Border Patrol Checkpoint (“Temecula Check-
point”). At this point, it appeared to Agent Hays that the truck
was traveling “over 90 miles per hour.” According to Agent
8446 UNITED STATES v. VALDES-VEGA
Hays, the flow of traffic at that time of day on I-15 was 70
to 80 miles per hour.
While he was following the truck, Agent Hays observed the
truck change lanes without signaling. Agent Hays then
observed the truck slow to 70 miles per hour as it approached
the Temecula Checkpoint, which was not operational that day.
The truck then moved over to the number two lane by cutting
in front of the vehicles directly behind it. After the truck
passed the Temecula Checkpoint, Agent Hays pulled along-
side the passenger side of the truck and observed a man (who
was later identified as Valdes-Vega) behind the wheel.1
Valdes-Vega was looking straight ahead and did not make eye
contact with Agent Hays. Agent Hays noticed that the truck
had an older body style, appeared clean, and had Baja Califor-
nia license plates. At this point, Agent Hays concluded that
the driver’s behavior “was consistent with the behavior of
alien and drug smugglers who encounter law enforcement in
this area,” and decided to stop the vehicle. Approximately a
mile and a half past the Temecula Checkpoint, Agent Hays
turned on his emergency lights and stopped the truck. Valdes-
Vega consented to a subsequent search of his truck, which
revealed approximately 7.991 kilograms of cocaine.
B. The District Court Proceedings
Valdes-Vega was indicted on one count of possession with
intent to distribute 5 kilograms or more of cocaine, in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Valdes-Vega
moved to suppress the cocaine found in his truck, claiming
that the cocaine was obtained in violation of the Fourth
Amendment. After holding an evidentiary hearing, the district
court denied Valdes-Vega’s motion to suppress.
1
There were no passengers in the truck. Valdes-Vega was the only occu-
pant of the truck.
UNITED STATES v. VALDES-VEGA 8447
In denying Valdes-Vega’s motion to suppress, the district
court found that the “totality of the circumstances” satisfied
the reasonable suspicion standard required to stop a vehicle.
Specifically, the district court found that the following facts,
when aggregated, provided Agents2 with reasonable suspicion
for the vehicle stop:
• Proximity to the Border: The district court cited
the proximity of the stop to the U.S./Mexico bor-
der (70 miles from the border).
• Traffic Patterns: The district court noted that the
speed of Valdes-Vega’s vehicle (90 miles per
hour) was not typical for traffic in that area at
that time of day, which Agent Hays testified was
70 to 80 miles per hour.
• The behavior of the driver: The district court
noted that Valdes-Vega had an “erratic driving
pattern” because he “was speeding, changing
lanes frequently, or weaving in and out of traffic,
[and] braking unexpectedly in front of other driv-
ers.” The district court also noted that Valdes-
Vega’s “behavior changed” abruptly just south of
the checkpoint because he “slowed down and
then sped up to get through [the checkpoint] as
quickly as possible.”
• The model and appearance of the vehicle: The
district court noted that Valdes-Vega’s truck had
Baja California license plates and “was a large
truck, a Ford F-150, which meant that it was
more suited to carrying large amounts of contra-
2
Under the “collective knowledge doctrine,” the observations of both
Agent Lopez and Agent Hays must be considered in the totality of the cir-
cumstances analysis. See United States v. Ramirez, 473 F.3d 1026, 1032
(9th Cir. 2007) (discussing “collective knowledge doctrine”).
8448 UNITED STATES v. VALDES-VEGA
band, drugs, or perhaps human beings. And it
was also harder for any law enforcement officer
to see into the vehicle to see if that was the case.”
• The district court also relied on the history of
“previous alien or drug smuggling in the area.”
• The district court also cited the experience and
training of Border Patrol Agents Lopez and Hays.3
After the district court denied his motion to suppress,
Valdes-Vega entered a conditional guilty plea to the sole
count of the indictment, reserving the right to appeal the dis-
trict court’s denial of his motion to suppress.
STANDARD OF REVIEW
We review the district court’s denial of a motion to sup-
press evidence de novo. United States v. Berber-Tinoco, 510
F.3d 1083, 1087 (9th Cir. 2007). The district court’s findings
of fact are reviewed for clear error. Id.DISCUSSION
I. The Reasonable Suspicion Standard & Border Patrol
Stops
[1] “The Fourth Amendment prohibits unreasonable
searches and seizures by the Government, and its protections
extend to brief investigatory stops of persons or vehicles that
fall short of traditional arrest.” United States v. Arvizu, 534
U.S. 266, 273 (2002) (internal quotation marks omitted). “Be-
3
Agent Hays has been a Border Patrol Agent for eleven years and had
participated in approximately 200 arrests of individuals for alien or nar-
cotic smuggling near the Temecula Checkpoint. Agent Lopez has been a
Border Patrol Agent for eight years and participated in approximately 50
arrests of individuals for alien or narcotic smuggling near the Temecula
Checkpoint.
UNITED STATES v. VALDES-VEGA 8449
cause the balance between the public interest and the individ-
ual’s right to personal security tilts in favor of a standard less
than probable cause in such cases, the Fourth Amendment is
satisfied if the officer’s action is supported by reasonable sus-
picion to believe that criminal activity may be afoot.” Id.(internal citations and quotation marks omitted). Despite
being less stringent than probable cause, reasonable suspicion
“nevertheless requires an objective justification for [an inves-
tigatory] stop.” United States v. Montero-Camargo, 208 F.3d
1122, 1129 (9th Cir. 2000) (en banc). An officer may not,
therefore, stop a motorist based solely on a hunch. Id.“Rather, reasonable suspicion exists when an officer is aware
of specific, articulable facts which, when considered with
objective and reasonable inferences, form a basis for particu-
larized suspicion.” Id.[2] In evaluating whether the stop of a vehicle satisfies the
reasonable suspicion standard, we must look to the “totality
of the circumstances.” Arvizu, 534 U.S. at 273 (internal quota-
tion marks omitted). When a border patrol stop is at issue, the
totality of the circumstances may 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 passen-
gers; (7) model and appearance of the vehicle; and,
(8) officer experience.
Berber-Tinoco, 510 F.3d at 1087 (quoting United States v.
Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997)). Under
the totality of the circumstances approach, reasonable suspi-
cion may exist even when each individual fact is susceptible
to an innocent explanation or is not probative. Arvizu, 534
U.S. at 277. This approach “allows officers to draw on their
own experience and specialized training to make inferences
from and deductions about the cumulative information avail-
8450 UNITED STATES v. VALDES-VEGA
able to them that might well elude an untrained person.” Id.
at 273. The court, however, “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. Manzo-Jurado,
457 F.3d 928, 934-935 (9th Cir. 2006) (quoting Montero-
Camargo, 208 F.3d at 1129). Accordingly, “reasonable suspi-
cion may not be based on broad profiles which cast suspicion
on entire categories of people without any individualized sus-
picion of the particular person to be stopped.” United States
v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir. 2002)
(internal quotation marks omitted); see also Reid v. Georgia,
448 U.S. 438, 441 (1980) (“The other circumstances [relied
upon by officers] describe a very large category of presum-
ably innocent travelers, who would be subject to virtually ran-
dom seizures were the Court to conclude that as little
foundation as there was in this case could justify a seizure.”).
With these principles in mind, we turn to the facts of this
case.
II. The Totality of the Circumstances Did Not Provide
Border Patrol Agents with Reasonable Suspicion to
Believe that Valdes-Vega was Smuggling Drugs or
Aliens
Agent Hays’s offered justification for the stop of Valdes-
Vega’s vehicle was his belief that Valdes-Vega’s behavior
“was consistent with the behavior of alien and drug smugglers
who encounter law enforcement in [the] area.” We find that
the totality of the circumstances in this case fall short of pro-
viding reasonable suspicion to believe that Valdes-Vega was
smuggling drugs or aliens. To the contrary, as discussed
below, the totality of the circumstance reveal a driver with
Mexican license plates committing traffic infractions on an
interstate 70 miles north of the U.S.-Mexico Border; a
UNITED STATES v. VALDES-VEGA 8451
description that describes too broad a category of people to
justify reasonable suspicion.
A. Proximity to the Border and Characteristics of the Area
[3] In concluding that Border Patrol Agents had reasonable
suspicion to stop Valdes-Vega’s vehicle, the district court
relied on the proximity of the stop to the U.S.-Mexico Border
and the history of alien and drug smuggling in the area. Spe-
cifically, the district court found it significant that the stop
occurred 70 miles from the U.S.-Mexico Border and occurred
on I-15, which, according to Agents Lopez and Hays “is com-
monly used by alien and drug smugglers to transport illegal
aliens and drugs into the United States.” Unlike the district
court, we conclude that driving a vehicle on a major interstate,
70 miles from the border, is entitled to little weight in the
totality of the circumstances analysis.
[4] According to the California Department of Transporta-
tion, the portion of Interstate 15 where Valdes-Vega was
stopped has an average daily traffic of 290,000 vehicles.4 As
we have explained, “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.”
Manzo-Jurado, 457 F.3d at 936; United States v. Brignoni-
Ponce, 422 U.S. 873, 882 (1975) (“Roads near the border
carry not only aliens seeking to enter the country illegally, but
a large volume of legitimate traffic as well.”). Indeed, to hold
that a vehicle’s appearance 70 miles from the border is highly
significant would effectively cast suspicion on all of the vehi-
cles in San Diego County, the fifth largest county in the coun-
try, with a population of over three million.5 See Sigmond-
4
Interstate 15 Corridor System Management Plan, California Depart-
ment of Transportation, at 11, www.dot.ca.gov/dist11/departments/
planning/pdfs/systplan/01-I-15CorridorSystemManagementPlanJanuary
2009.pdf.
5
County Totals: Vintage 2011, United States Census Bureau, http://
www.census.gov/popest/data/counties/totals/2011/index.html (click on
link for “100 Largest Counties”).
8452 UNITED STATES v. VALDES-VEGA
Ballesteros, 285 F.3d at 1126 (“Even assuming that the
checkpoint is close to the border, that factor is of limited
value here considering the presence of two large metropolitan
areas north of the stop.”); United States v. Olivares-Pacheco,
633 F.3d 399, 402 (5th Cir. 2011) (“ ‘[A] car traveling more
than fifty miles from the border is usually viewed as being too
far from the border to support an inference that it originated
its journey there.’ ” (internal quotation marks omitted)) (quot-
ing United States v. Orozco, 191 F.3d 578, 581 (5th Cir.
1999)). Furthermore, the Agents did not identify any particu-
lar characteristics of this portion of I-15 that gave them partic-
ularized reason to suspect Valdes-Vega was engaged in
smuggling. See Arvizu, 534 U.S. at 269 (finding it significant
that officers found the defendant on an unpaved road “very
rarely traveled except for use by local ranchers and forest ser-
vice personnel,” but commonly used by smugglers to avoid a
nearby border checkpoint).
B. Traffic Patterns and Behavior of the Driver
[5] In concluding that the Agents had reasonable suspicion
to stop Valdes-Vega’s vehicle, the district court relied on
Valdes-Vega’s “erratic” driving pattern, which included: driv-
ing ten miles per hour faster than the flow of traffic, braking
unexpectedly in front of other drivers, and making lane
changes without signaling. Although relevant to a reasonable
suspicion analysis, “traffic infractions alone do not create a
reasonable suspicion of transporting aliens.” United States v.
Palos-Marquez, 591 F.3d 1272, 1278 (9th Cir. 2010). While
we do not condone Valdes-Vega’s violation of the traffic
laws, we nevertheless conclude that, in the circumstances of
this case, Valdes-Vega’s driving behavior was not highly pro-
bative of smuggling drugs or aliens. See United States v.
Fernandez-Castillo, 324 F.3d 1114, 1120 (9th Cir. 2003) (“It
is perfectly understandable that swerving within one’s own
UNITED STATES v. VALDES-VEGA 8453
lane of traffic would not support reasonable suspicion of
smuggling, which has nothing to do with impairment.”).6
While a suspect’s “unprovoked flight” from officers may
give rise to a reasonable suspicion, see Illinois v. Wardlow,
528 U.S. 119, 124-25 (2000), here, no such unprovoked flight
took place. To the contrary, Valdes-Vega was already “travel-
ing faster than the flow of traffic” when Agent Lopez spotted
his vehicle. Although Valdes-Vega made “erratic lane
changes without signaling” after Agent Lopez began follow-
ing him, Agent Lopez was traveling in an unmarked vehicle.
This behavior continued even as Agent Hays followed
Valdes-Vega in a marked vehicle, suggesting that Valdes-
Vega’s driving was not influenced by the Agents’ presence
and, therefore, cannot be categorized as flight.
[6] Furthermore, we place little stock in the fact that
Valdes-Vega slowed down as he approached the closed
Temecula Checkpoint. Agent Hays testified that smugglers
often speed through the Checkpoint when it is non-
operational, but sometimes slow down so as not to bring
attention to themselves. Based on this testimony, “[it] is, in
fact, difficult to imagine what [Defendant] could have done at
that point that might not have appeared suspicious to a Border
Patrol agent.” Sigmond-Ballesteros, 285 F.3d at 1122 (internal
quotation marks omitted). This Court looks with disfavor
6
Ordinarily, an officer’s observance of a traffic violation, by itself, is
sufficient for a vehicle stop. See Whren v. United States, 517 U.S. 806,
813 (1996); United States v. Willis, 431 F.3d 709, 715 (9th Cir. 2005). But
Border Patrol Agents, unlike state and local law enforcement agents, do
not have authority to arrest or cite individuals for traffic violations. See 8
U.S.C. § 1357 (detailing authority of immigration officers to arrest and
detain); 8 C.F.R. § 287.5 (detailing authority of immigration officers to
arrest and detain); Cal. Penal Code § 830.8 (limiting authority of federal
agents in California to arrest persons for violations of state and local
laws). Because the Border Patrol Agents who stopped Valdes-Vega did
not have the authority to enforce California traffic laws, Valdes-Vega’s
violation of California traffic laws cannot form the sole basis for the vehi-
cle stop. See Palos-Marquez, 591 F.3d at 1278.
8454 UNITED STATES v. VALDES-VEGA
upon officers’ reliance on this type of “damned if you do,
damned if you don’t” consideration. Montero-Camargo, 208
F.3d at 1136; see United States v. Diaz-Juarez, 299 F.3d
1138, 1148 (9th Cir. 2002) (Ferguson, J. dissenting) (“We
have frowned on speed of the vehicle as a basis for reasonable
suspicion . . . , pointing out that the government has argued
both increases and decreases in speed constitute suspicious’
conduct, creating a heads I win, tails you lose trap for drivers
who do not maintain constant speed.”) (internal quotation
marks omitted)).
Additionally, while the district court speculated that
Valdes-Vega’s passage through the Temecula Checkpoint at
a time when it was non-operational “could be significant”
because Valdes-Vega could have been using “a lookout,” the
Agents did not know the last time the Checkpoint had been
open. Accordingly, there is nothing in the record from which
we might infer that the timing of Valdes-Vega’s arrival at the
Checkpoint was not a coincidence, such as “evidence indicat-
ing that the checkpoint was known to be closed more often
than not at that particular time of day.” Sigmond-Ballesteros,
285 F.3d at 1125.
[7] Moreover, unlike the district court, we do not find it
significant that Valdes-Vega did not make eye contact with
Agent Hays. “In general, although eye contact, or the lack
thereof, may be considered as a factor establishing reasonable
suspicion, we have noted that whether the contact is suspi-
cious or not is highly subjective and must be evaluated in
light of the circumstances of each case.” Montero-Camargo,
208 F.3d at 1136 (internal quotation marks omitted). Valdes-
Vega was driving on a major interstate at a high rate of speed
when Agent Hays pulled up along side him. In these circum-
stances, Valdes-Vega’s decision to keep his eyes on the road
instead of on Agent Hays was hardly suspicious. See Arvizu,
534 U.S. at 275-76 (noting that a driver’s failure to make eye
contact with an officer on a busy highway is “unremarkable”).
UNITED STATES v. VALDES-VEGA 8455
C. Model and Appearance of the Vehicle
[8] In finding reasonable suspicion, the district court noted
that Valdes-Vega’s truck had Baja California license plates
and “was a large truck, a Ford F-150, which meant that it was
more suited to carrying large amounts of contraband, drugs,
or perhaps human beings. And it was also harder for any law
enforcement officer to see into the vehicle to see if that was
the case.” The presence of Mexican license plates is normally
entitled to some weight in evaluating a vehicle stop by Border
Patrol Agents. See Montero-Camargo, 208 F.3d at 1139(“While having Mexican plates is ordinarily of no signifi-
cance, where the criminal act suspected involves border-
crossing, the presence of foreign license plates may be
afforded some weight in determining whether a stop is rea-
sonable.”). Nevertheless, we ascribe little weight to the
appearance of Mexican license plates here because Valdes-
Vega’s vehicle was 70 miles from the border. Cf. United
States v. Guzman-Padilla, 573 F.3d 865, 882 (9th Cir. 2009)
(noting that the officer testified that it was rare to see Mexican
plates where he spotted the defendant’s vehicle). As the Fifth
Circuit has explained, “a car traveling more than fifty miles
from the border is usually viewed as being too far from the
border to support an inference that it originated its journey
there.” Olivares-Pacheco, 633 F.3d at 402 (internal quotation
marks omitted).
[9] We likewise afford little weight to the make and model
of Valdes-Vega’s vehicle: an F-150 pickup truck. As even
Agent Hays acknowledged during his testimony “numerous
types of vehicles” are used to smuggle drugs and aliens, and
we have recognized that “light trucks and pick ups, although
sometimes used by smugglers . . . have been popular best-
sellers, and are commonly used by those who are engaged in
agricultural work, the construction trades, or any other trade
which requires the carrying of heavy tools or implements.”
Sigmond-Ballesteros, 285 F.3d at 1125. Additionally, the
Agents were unable to point to specific and particularized
8456 UNITED STATES v. VALDES-VEGA
characteristics of Valdes-Vega’s truck that support an infer-
ence it was more suspicious than an average Ford F-150. See
Diaz-Juarez, 299 F.3d at 1142 (noting that the defendant’s car
had modified suspension and bounced erratically over small
bumps, “common characteristics of vehicles used for smug-
gling.”). We need not credit Agent Hays’s testimony that the
clean appearance of Valdes-Vega’s truck made it suspicious,
as Agent Hays based this inference on an unsubstantiated and
dubious assertion that officers do not commonly see clean
vehicles with Baja California plates due to the abundance of
dirt roads in Mexico.7 Montero-Camargo, 208 F.3d at 1129(explaining that reasonable suspicion must be based on facts
combined with “objective and reasonable inferences”)
(emphasis added)).
D. The Totality of the Circumstances Did Not Provide
Agents with Reasonable Suspicion to Believe that
Valdes-Vega Was Smuggling Drugs or Aliens
[10] The facts of this case, when considered cumulatively,
do not create a reasonable suspicion that Valdes-Vega was
smuggling drugs or aliens. Taken together they reveal the fol-
lowing profile: a Ford F-150 pickup truck, with Baja Califor-
nia plates, being erratically driven on I-15, 70 miles north of
the border, at approximately 2:00 in the afternoon, that
slowed down as it passed through the closed Temecula
Checkpoint, and whose driver failed to look a Border Patrol
Agent in the eyes. Putting aside the erratic driving, this
description likely “fit[s] hundreds or thousands of law abiding
daily users of the highways of Southern California.” United
States v. Rodriguez, 976 F.2d 592 (9th Cir. 1992), amended
by 997 F.2d 1306 (9th Cir. 1993).
7
Furthermore, we view the Government’s emphasis on Officer Hays’
cleanliness observation with some skepticism. In another case before this
panel, United States v. Pacheco-Garcia, No. 11-50047, the Government
argued that dirt on the defendants’ vehicle was a circumstance supporting
reasonable suspicion for a roving border stop.
UNITED STATES v. VALDES-VEGA 8457
[11] The question, then, is whether the addition of the
erratic driving to this equation pushes this otherwise innocent
profile to a reasonably suspicious one. See Manzo-Jurado,
457 F.3d at 939 (explaining that Agents “must also observe
additional information that winnows the broad profile into an
objective and particularized suspicion of the person to be
stopped.”). We conclude that it does not. The Agents had rea-
son to be suspicious when they saw Valdes-Vega driving
erratically. The facts on which they relied, however, in con-
verting that suspicion into reasonable suspicion were exceed-
ingly general and not highly probative in the circumstances.
Even when those facts are viewed together they fall short of
providing a “particularized and objective” basis for suspecting
that Valdes-Vega was engaged in anything other than unlaw-
ful driving. To hold otherwise, would sanction the use of a
profile that would effectively subject every driver with Mexi-
can license plates to stops by Border Patrol Agents, many
miles from the border, simply for committing traffic infrac-
tions. Of course, border agents are entitled to rely on their
experience, but “experience may not be used to give [them]
unbridled discretion in making a stop.” Diaz-Juarez, 299 F.3d
at 1141. Here, the Agents’ experience is insufficient to over-
come the broad and generalized profile on which they relied
in stopping Valdes-Vega.
The dissent states that we have used the “divide-and-
conquer” methodology prohibited by the Supreme Court in
Arvizu. We disagree. Arvizu merely clarified that a proper
totality of the circumstances analysis must not exclude facts
that are minimally probative or are susceptible to innocent
explanation. 534 U.S. at 274 (criticizing the appellate court
for concluding that each fact “was by itself readily susceptible
to an innocent explanation was entitled to ‘no weight.’ ”). We
have not declined to consider any of the facts on which the
Agents relied.
Furthermore, we reject the dissent’s suggestion that it is
wrong to consider the strength of each fact individually before
8458 UNITED STATES v. VALDES-VEGA
viewing them collectively. “After Arvizu it is still the function
of the courts to review an officer’s asserted grounds for suspi-
cion and determine whether collectively they provide an
objectively reasonable basis,” for an immigration stop. United
States v. Crapser, 472 F.3d 1141, 1156 n.7 (9th Cir. 2007)
(emphasis added) (Reinhardt, J., dissenting). While we may
not disregard as irrelevant a fact with low probative value
(dividing and conquering), we need not pretend that the pro-
bative value of all facts is equal. See id. (noting “[the offi-
cer’s] assessment of respondent’s reactions upon seeing him
and the children’s mechanical-like waving, which continued
for a full four to five minutes, were entitled to some weight.”
(emphasis added)); see also Manzo-Jurado, 457 F.3d at 936
(going through the facts relied upon by the officers and not-
ing, in some instances, their probative value); Sigmond-
Ballesteros, 285 F.3d at 1122-26 (same). We think it uncon-
troversial to say that, when viewed in totality, a collection of
facts that are each highly probative of criminal activity is
more likely to support a finding of reasonable suspicion than
a set of facts which are not.
[12] Of course, we acknowledge that reasonable suspicion
may be found where “each . . . factor[ ] alone is susceptible
of innocent explanation.” Arvizu, 534 U.S. at 277. The totality
of the circumstances approach, however, is not susceptible to
bright line rules. Id. at 276 (noting that “a totality of the cir-
cumstances approach may render appellate review less cir-
cumscribed by precedent than otherwise . . . .”). Here, the
facts on which the agents relied are not highly probative, and
this is one such case where, even when viewed together, they
do not amount to reasonable suspicion. As a result, the stop
was unlawful and the district court erred in denying Valdes-
Vega’s motion to suppress.
CONCLUSION
We REVERSE the district court’s denial of Valdes-Vega’s
motion to suppress and REMAND for proceedings consistent
with this opinion.
UNITED STATES v. VALDES-VEGA 8459
CONLON, District Judge, dissenting:
The district court correctly considered the totality of the
circumstances in concluding the record met the reasonable
suspicion standard for the Border Patrol’s stop of Valdes-
Vega’s truck. Accordingly, I would affirm the district court’s
denial of the motion to suppress 7.991 kilograms of cocaine
found in the truck after the stop.
Experienced Border Patrol agents observed Valdes-Vega’s
F-150 pickup truck, with a Baja California license plate, trav-
eling northbound at over 90 m.p.h. on Interstate 15 near the
Temecula border checkpoint station. The area is recognized as
a smuggling corridor. See United States v. Rodriguez-
Sanchez, 23 F.3d 1488, 1490 (9th Cir. 1994), overruled in
part on other grounds by United States v. Montero-Camargo,
208 F.3d 1122, 1131-32 (9th Cir. 2000) (en banc). The posted
speed limit is 70 m.p.h.; the F-150 was moving faster than the
flow of traffic. The agents observed the large pickup was
driven erratically, weaving in and out of traffic lanes without
signaling and causing other drivers to apply their brakes.
After the first Border Patrol agent who attempted to follow
the pickup lost sight of the speeding truck, he radioed for
another agent to enter the interstate further north.
The second Border Patrol car was able to catch up with the
pickup. In all, the agents observed Valdes-Vega’s erratic driv-
ing for several miles; his abrupt lane changes without signal-
ing were repeated at least ten times. In the agents’ experience,
an F-150 pickup is capable of carrying and concealing large
amounts of drugs or human contraband. The pickup slowed to
70 m.p.h. passing the closed Temecula checkpoint.
The second Border Patrol agent turned on his emergency
lights a mile and a half past the checkpoint and pulled along-
side the pickup. Initially, the sole occupant, Valdes-Vega,
continued to look straight ahead, but after a brief hesitation,
pulled over to the side of the road at the agent’s direction.
8460 UNITED STATES v. VALDES-VEGA
Giving due weight to all these circumstances and the factual
inferences drawn by the agents and the district court, the
agents had reasonable suspicion to believe Valdes-Vega was
involved in illegal activity. United States v. Arvizu, 534 U.S.
266, 273-74 (2002) (“When discussing how reviewing courts
should make reasonable-suspicion determinations, we have
said repeatedly that they must look at the ‘totality of the cir-
cumstances’ of each case to see whether the detaining officer
has a ‘particularized and objective basis’ for suspecting legal
wrongdoing”). Valdes-Vega’s driving constituted more than
mere traffic violations. He was not just speeding, but driving
recklessly near the last checkpoint from the Mexican border
in a vehicle not particularly designed for speed. It is a reason-
able inference that the driver of the truck was driving in such
a manner to reach the checkpoint quickly and slowed down at
the checkpoint itself in an attempt to avoid drawing attention
to himself. It is a further reasonable inference that the driver
wanted to cross the checkpoint quickly to evade detection by
law enforcement and avoid discovery of criminal activity.
The majority repeatedly recognizes that the totality of the
circumstances must be considered in determining whether the
agents had reasonable suspicion to stop the truck for further
investigation. However, the majority does not actually apply
this standard. Rather, their analysis splinters the totality of the
circumstances into innocuous factors. This is the “divide and
conquer” methodology expressly rejected in Arvizu. 534 U.S.
at 274 (“The [appellate] court’s evaluation and rejection of
seven of the listed factors in isolation from each other does
not take into account the ‘totality of the circumstances,’ as our
cases have understood that phrase”); see also United States v.
Sokolow, 490 U.S. 1, 7-8 (1989) (totality of the circumstances
must be considered); United States v. Cortez, 449 U.S. 411,
417-18 (1981) (same); United States v. Palos-Marquez, 591
F.3d 1272, 1277-78 (9th Cir. 2010) (rejecting defendant’s “at-
tempt to discredit individually each of the facts used by agents
to determine if there was reasonable suspicion to initiate the
UNITED STATES v. VALDES-VEGA 8461
stop”); United States v. Berber-Tinoco, 510 F.3d 1083,
1087-89 (9th Cir. 2007) (same).
The majority finds that
• driving a vehicle on a major interstate, 70 miles
from border is entitled to little weight and this
factor is not highly relevant;
• driving on Interstate 15, which may be used by
smugglers, is entitled to little weight;
• Valdes-Vega’s erratic driving pattern was not
highly probative of smuggling drugs or aliens;
• his slowing down as he passed the checkpoint
was not relevant;
• his failure to make eye contact with an agent who
pulled alongside him was irrelevant and hardly
suspicious;
• the truck’s Mexican license plate is given little
weight because the truck was 70 miles from the
border;
• the use of a F-150 pickup truck is afforded little
weight because smugglers use numerous types of
vehicles; and
• the uncharacteristic cleanliness of a truck with a
Baja California plate is entitled to no weight
because the experienced agent’s skepticism
regarding the vehicle’s cleanliness is “unsubstan-
tiated and dubious” and, in another case, the gov-
ernment argued a dirty vehicle supported
reasonable suspicion.
8462 UNITED STATES v. VALDES-VEGA
The majority isolates and considers the sufficiency of each of
the factors in the record individually, and attributes little or
virtually no weight to any factor. This is error under Arvizu.
I therefore respectfully dissent.