Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM^** 

Roberto Gil-Hernandez appeals from the judgment entered following his conditional plea of guilty. He challenges the order denying his motion to suppress 195 pounds of marijuana seized from the trunk of his car. Gil-Hernandez argues that the officers did not have a founded suspicion of criminal conduct to justify stopping his vehicle. We disagree and affirm.

We review de novo an order denying a motion to suppress evidence. United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988). Credibility findings are reviewed for clear error. Id. at 683. Border Patrol Agents may stop a vehicle and question its occupants if the officers have a reasonable suspicion that undocumented aliens are being transported. United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). An officer's suspicion is reasonable if it is based on "specific articulable facts, together with rational inferences from those facts." Id. In determining whether an investigatory stop was proper, we review the totality of the circumstances known to the officer. United States v. Thomas, 844 F.2d at 681.

United States Border Patrol Agents first observed Gil-Hernandez driving a 1978 Buick automobile on Highway I-19 in southern Arizona, approximately 25 kilometers north of the United States-Mexico border. The Buick was riding low to the ground. It was being driven at a slower speed than other vehicles proceeding in the same direction. The two occupants, Gil-Hernandez and Alejandro Estel, were sitting rigidly and avoided eye contact with the agents. The Border Patrol Agents followed the Buick. Gil-Hernandez accelerated his vehicle to 75 miles per hour. When the officers pulled alongside, the car slowed to 50 miles per hour. Meanwhile, Gil-Hernandez and Estel glanced separately into the car's interior rear-view and exterior side mirrors. Estel was observed running his hands through his hair.

Based on these observations the Border Patrol Agents stopped the vehicle. Agent Gregory Louis Kurapas pressed down on the trunk to make sure that it was locked. He testified that he did this routinely because border patrol agents have been shot at by persons hiding in trunks. As he did this, Agent Kurapas smelled a strong odor of marijuana.

Agent Kurapas looked in the rear passenger compartment and again smelled a strong odor of marijuana. After obtaining Gil-Hernandez' consent, the agents searched the trunk and found several bundles of marijuana.

The district court denied the motion to suppress the marijuana seized from the trunk based on the officer's testimony that the Buick was riding low to the ground. Gil-Hernandez filed a motion for reconsideration of the order denying the motion to suppress. At the hearing on this motion, the district court viewed the car as it was driven past the courthouse two or three times. The car contained 195 pounds of weight in the trunk. A defense investigator testified that when 195 pounds were placed in the trunk, the back of the car was approximately one inch lower. The motion for reconsideration was denied.

Viewed in their totality, the facts articulated by the border patrol agents establish that their suspicion was reasonable that undocumented aliens were hidden in the trunk. In United States v. Lanford, 838 F.2d 1351 (5th Cir. 1988), the Fifth Circuit held that the nervous demeanor of the driver of a car was a factor that could be considered in justifying a stop. Id. at 1354. In Cervantes-Cuevas v. INS, 797 F.2d 707 (9th Cir. 1985), we concluded that agents were entitled to stop a vehicle that accelerated after passing a border patrol car. Id. at 710. In United States v. Hernandez-Gonzalez, 608 F.2d 1240 (9th Cir. 1979), we held that riding "heavy" 60 miles north of the Mexican border was a proper factor to consider in determining whether a vehicle stop was based on reasonable suspicion. Id. at 1243. In Brignoni-Ponce, the Supreme Court noted that erratic driving could be considered as part of the totality of the circumstances justifying an investigating stop. 422 U.S. at 885.

The district court found Border Patrol Agent Kurapas' testimony credible. The record does not demonstrate that this finding was clearly erroneous. The testimony of the defense investigator corroborated Agent Kurapas' testimony that the back part of the Buick was lower with 195 pounds in the trunk area. Because our independent review of the record satisfies us that the totality of the factors known to Agent Kurapas demonstrated a reasonable suspicion for stopping Gil-Hernandez' vehicle, we AFFIRM.