Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

MEMORANDUM^** 

The United States appeals from the district court's grant of Manuel Esquer's motion to suppress evidence seized following an allegedly illegal automobile stop. This court has jurisdiction, 18 U.S.C. § 3731, and we reverse.

The grant or denial of a motion to suppress evidence, a mixed question of law and fact, is reviewed de novo, as is whether founded suspicion justified an investigatory stop. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988).

Carl Sanders, a Border Patrol Agent of eight years experience, first observed Manuel Esquer and a companion park a dark green Bronco with a distinctive hood ornament and tinted windows in front of a shopping center drug store. The two Hispanic men got out of the Bronco, raised the hood, but did nothing to the engine, stood back from the vehicle, and looked around the parking lot. Within a minute or two, a third Hispanic male of noticeably different appearance and demeanor approached Esquer and his companion. The man's haircut, gestures, and clothing indicated to Sanders the possibility that he was a recently arrived alien. The three men talked for three or four minutes; then the third man walked away. Esquer and his passenger closed the hood of their car and drove away. Sanders concluded he had observed a prearranged meeting.

The next day, while patrolling west near Fort Huachuca in a conspicuously marked Border Patrol vehicle in an area 29 miles north of the Mexican Border known for a high level of illegal alien and drug smuggling, Sanders met the same Bronco travelling east toward the gate of the fort. The Bronco appeared to be going too fast for the winding dirt road. Sanders made a U-turn and followed the Bronco. Sanders knew there was a stop sign at the gate and a notice stating that persons or vehicles are subject to search. Because of its speed, Sanders could not keep the Bronco in sight but was close enough to anticipate catching up at the stop sign at the gate of the fort. When Sanders arrived at the gate, however, the Bronco was nowhere to be seen. Sanders inferred the Bronco had run the stop. He drove on and caught and stopped the Bronco less than a mile inside the gate. Looking through the open driver's window, Sanders spotted a package between the driver's feet. When asked what the package contained, Esquer responded that it contained "coca." Sanders arrested the driver and passenger. A search of the Bronco produced five duffle bags containing 307.5 pounds of cocaine.

Esquer was driving an overland type vehicle with tinted windows, a type Sanders associated with illegal alien smuggling. Esquer appeared to Sanders to be driving too fast for the road and to have run a stop sign. Esquer was driving 29 miles from the border, in an area known for smuggling both illegal aliens and drugs, the day after an apparently pre-arranged meeting in a parking lot with a person whose haircut, appearance, and general manner indicated that he might be an alien, under circumstances contrived to make the meeting appear to be fortuitous.

Esquer argues that each of the above factors individually and in combination is consistent with innocent activity. The meeting in the parking lot was not suspicious in itself--the third man may simply have come up for directions. Sanders had no basis for suspecting Esquer or his companion were themselves illegal aliens. Broncos with tinted windows are common in the area; the Fort Huachuca area and the road leading to it are a well-used recreation area; Sanders did not note the speed of the Bronco, nor did he actually see it run the stop sign.

However, "when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion of a particular person and for action on that suspicion." United States v. Cortez, 449 U.S. 411, 419 (1981). " [T]he evidence ... collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Id. at 418. Viewing the record as a whole, in light of Agent Sanders prior observation of the behavior of persons engaged in smuggling activity in the area, Sanders had "a reasonable suspicion supported by articulable facts that criminal activity may be afoot." United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989). The district court erred in granting Esquer's motion to suppress.

REVERSED.