Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)

MEMORANDUM^** 

The police agents observed the two cars driving very closely together in tandem on a route near the border often used for smuggling. The occupants in the first car "stiffened" and both drivers "stared ahead" when the police car's headlights flashed upon them. The vehicles sped up when the police car began to follow them, and made a sudden turn in tandem onto a private dirt road without signaling. We agree with the district court that these circumstances were sufficient to create "a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.' " United States v. Sokolow, 109 S. Ct. 581, 585 (1989).

This result is consistent with our decision in United States v. Robert L., 874 F.2d 701 (9th Cir. 1989), in which we recognized that the manner in which a suspect looks at or avoids eye contact with an officer, the manner in which he drives, and whether he is driving in tandem with another car, are relevant to a determination of founded suspicion. We held, however, that these factors did not support such a determination in the circumstances of that case. We concluded that the fact that the suspect "glanced quickly" at the agent "and then returned his eyes to the road" was normal because the agent was directing traffic at the scene of an accident; the fact that the suspect shifted lanes was "perfectly reasonable given that a marked patrol car was approaching in the lane behind him at 90 miles per hour;" and the officer's conclusion that the suspect was traveling "in tandem" with another automobile was "undercut" because it was based "only on the briefest of observations."

In the present case, appellant's car and the car following it were driving a route known for smuggling activity; there was no explanation for their apparently conscious effort to ignore the light of the police car when it was directed upon them; and there was no explanation for the fact that they slowly pulled off to the side of the highway and then back on, increased their speed when the police followed them, and turned off the highway on a dirt road without signaling, still in tandem, before being stopped.

We also agree with the district court's finding based on all the circumstances that appellant's statement that "he didn't know how much he had" was not the result of coercive government conduct that overbore appellant's will. See U.S. v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988). The police officer's verbal threat was patently directed to avoiding aggression against the officer, not eliciting incriminating statements from appellant. Although the agent drew his gun when he approached the car and saw the load of marijuana, he pointed the gun in the air rather than at appellant, and holstered it when he saw appellant was unarmed. The officer asked appellant only a single question which concerned the people in the car appellant was following, and that question appellant did not answer--volunteering instead the unresponsive statement admitted against him.

AFFIRMED.

PREGERSON, Judge, dissenting:

The majority's decision cannot be reconciled with our holding in United States v. Robert L., 874 F.2d 701 (9th Cir. 1989). In Robert L., a case whose facts are largely indistinguishable from those of the present case, we held that the arresting officers lacked founded suspicion to conduct an investigatory detention of the juvenile defendant's car. I believe that Robert L. governs the present case. Accordingly, I dissent from the majority's holding.