Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Jose Angel Borbon-Excalante pled guilty to a one-count indictment of possessing, with intent to distribute, 101 pounds of marijuana. Appellant reserved his right to appeal the district court's denial of his motion to suppress the evidence seized at the time of his arrest. See Fed. R. Crim. P. 11(a) (2). He timely appealed. We review de novo the district court's determination that founded suspicion existed, United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988), and affirm.

A law enforcement officer may make a brief investigative stop of a moving vehicle if, under the totality of the circumstances, the officer is aware of specific, articulable facts leading to a reasonable or founded suspicion that criminal activity may be occurring. United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989); United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir. 1985) (Corral) . Founded suspicion may be derived from objective facts and circumstantial evidence as interpreted by experienced law officers. United States v. Patterson, 492 F.2d 995, 997 (9th Cir.), cert. denied, 419 U.S. 846 (1974). "Even if each of the factors viewed alone is consistent with innocent activity, viewed together they may support a finding of reasonable suspicion." United States v. Malone, 886 F.2d 1162, 1165 (9th Cir. 1989).

Appellant argues that the facts articulated by the border patrol agent at the evidentiary hearing on his suppression motion do not give rise to a reasonable suspicion that appellant's car contained contraband. The agent testified that the area in which he requested appellant's car be stopped is close to the Mexican border and has been the site of recent illegal activity. Appellant does not contest that these factors are relevant to a determination of reasonable suspicion. Appellant's Opening Brief at 12, quoting United States v. Morrison, 546 F.2d 319, 320 (9th Cir. 1976). Other relevant observations reported by the border patrol agent included electronic sensor indications of foot traffic along trails leading from the border to the area in question on that night and his observation that the vehicle was not registered locally.

Appellant primarily argues that the border patrol agent relied on his observations about the time and manner in which appellant's vehicle traversed a hill in the area. Appellant argues that nothing about the car's appearance or the way in which it was riding indicated anything suspicious. However, a time lapse in a vehicle's progress that is known to an agent as consistent with a contraband pick up is a relevant factor in determining reasonable suspicion. See Corral, 753 F.2d at 789.

The totality of the circumstances observed and described by the border patrol agent provided reasonable suspicion sufficient to justify the investigative stop of appellant's car. The district court's order denying the suppression motion is AFFIRMED.