Unpublished Disposition, 911 F.2d 739 (9th Cir. 1988)

MEMORANDUM^* 

Eduardo Molina-Durguin and Carlos Samuel Arguelles-Cordova ("the defendants") appeal the district court's denial of their motions to suppress evidence. They claim that the Border Patrol agents did not have reasonable suspicion to justify an investigatory stop of their van. We affirm.

PROCEEDINGS

The defendants were indicted for possession with intent to distribute approximately 1907 pounds of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii), and for conspiracy to possess with intent to distribute this same quantity of marijuana in violation of 21 U.S.C. § 846. Both defendants filed motions to suppress evidence. Following an evidentiary hearing, the district court, per Judge Bilby, denied the motions as to the challenged investigatory stop. A jury found Molina-Durguin guilty of the possession charge; the district court directed a verdict of not guilty on the conspiracy charge. Arguelles-Cordova entered a conditional plea of guilty to both charges, reserving his right to appeal the denial of the suppression motion. Both defendants have timely appealed the denial of the suppression motion. Their appeals have been consolidated.

FACTS

On November 4, 1988 the United States Border Patrol received a tip from an anonymous caller that a white-colored Ford van bearing the Zenith company logo was being driven twice weekly from Douglas, Arizona to Tucson, Arizona loaded with marijuana. Ten days later, Border Patrol agents Diana Ortiz and Brenna Nienast, sitting in a marked Border Patrol vehicle, observed two white vans, a Ford and a Chevrolet, traveling on Interstate 10 near Tucson. The vans were traveling five to six car lengths apart with no vehicles between them. The Ford van, which was traveling behind the Chevrolet van, was marked with the Zenith logo.

The agents pulled out into traffic to follow the vans. When they caught up with the vans, they observed that the vans were still traveling one behind the other but that the Ford van was now in front of the Chevrolet van. Both vans were traveling at about 55 miles per hour. The agents ran registration checks on both vans. They learned that the Chevrolet van was registered to a resident of Douglas; the Ford van was registered to a resident of Phoenix; and, the Ford's registration had been expired for two years.

During the registration check, the agents had positioned their patrol vehicle so that it was in between the two vans. At this point the Chevrolet van reduced its speed to approximately 30 miles an hour. The agents likewise slowed to 30 miles an hour; the Ford van continued on ahead. Although the speed limit was 65 miles an hour, the driver of the Chevrolet van made no attempt to pass the patrol vehicle. Shortly thereafter the agents stopped the Chevrolet van. The driver vehemently challenged the right of the agents to stop him, a response that was atypical in the experience of agent Nienast, who had participated in hundreds of stops. As there were no obvious signs that the van was carrying contraband, the agents allowed the driver to continue on his way.

The agents then radioed their supervisor to explain the situation, after which they proceeded after the Ford van. When the agents caught up with the Ford van, they activated a siren and red lights. The driver exited the Interstate and came to a stop at a traffic signal. The agents approached the van and immediately detected the odor of marijuana. At this point Molina-Durguin, the driver of the van, and Arguelles-Cordova, the sole passenger, were arrested.

STANDARD OF REVIEW

Whether the agents had reasonable suspicion to justify an investigatory stop is a mixed question of law and fact which we review de novo. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989). "An officer may make an investigatory stop if he is aware of specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person detained is engaged in criminal activity." Id. (citing United States v. Cortez, 449 U.S. 411, 416-18 (1981)). The facts are to be interpreted in light of a trained officer's experience. Id. The district court's findings of fact are accepted unless clearly erroneous. United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986). Finally, we may affirm on any ground fairly supported by the record. United States v. Baron, 860 F.2d 911, 917 (9th Cir. 1988), cert. denied, 109 S. Ct. 1944 (1989).

ANALYSIS

Reasonable suspicion must exist at the time the law enforcement agent initiates the stop. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). Here, the agents initiated the stop when they activated a siren and red lights. See United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989). The record indicates that the agent's suspicions were based on an number of factors, the most significant of which are the following: (1) an anonymous tip that a white Ford van bearing a Zenith company logo was being used twice weekly to transport marijuana from Douglas to Tucson; (2) the Ford van appeared to be traveling in tandem with the Chevrolet van; (3) the location of the vans on the route from Douglas to Tucson; (4) the Chevrolet van was registered to a resident of Douglas and the Ford's registration had been expired for two years; (5) and the reduction in speed of the Chevrolet van and the behavior of the its driver upon being stopped. In considering whether these individual factors add up to reasonable suspicion, "the totality of the circumstances--the whole picture--must be taken into account." Cortez, 449 U.S. at 417.

The defendants contend that the anonymous tip was too vague and too stale to form a basis for reasonable suspicion. In a recent opinion, Alabama v. White, 110 S. Ct. 2412 (1990), the Supreme Court announced that anonymous tips in the reasonable suspicion context are to be evaluated under the same approach used to evaluate such tips in the probable cause context, "the only difference being the level of suspicion that must be established." Id. at 2416. Thus, a reviewing court must give "the anonymous tip the weight it deserve [s] in light of its indicia of reliability as established through independent police work." Id.

Here, the agents vertified through independent observation that a Ford van matching the tipster's description was traveling on the route from Douglas to Tucson. The information that the Chevrolet van, which appeared to be traveling in tandem with the Ford van, was registered to a resident of Douglas supported an inference, consistent with the tip, that the Ford van was traveling from Douglas. Finally, the information that the Ford's registration had been expired for two years supported an inference that this particular van no longer belonged to the Zenith company. We do not find, however, that the tip, as corroborated, was sufficient on its own to establish reasonable suspicion. We consider it to be merely one, albeit significant, event in "the whole picture."

In addition, the record fairly supports an inference that the two vans were traveling in tandem and were engaged in an illicit joint venture. It has been long recognized in this circuit that while the observation of two vehicles driving in tandem does not itself justify a stop, it may serve as a predicate for reasonable suspicion because smugglers often employ "the 'lead car-load car' modus operandi, whereby the two cars travel together during a smuggling venture with the first car operating primarily as a scout car." United States v. Larios-Montes, 500 F.2d 941, 943 (9th Cir. 1974), cert. denied, 422 U.S. 1057 (1975). The government contends that the Chevrolet van's switch from being in front to being behind the Ford van, its reduction in speed, and the unusual behavior of its driver upon being stopped support an inference that the Chevrolet van was the "scout" or "diversion" vehicle. The government's contention is valid. The actions and conduct of the Chevrolet van's driver fairly support an inference that he was attempting to divert attention away from the Ford van.

The fact that the agents stopped the Chevrolet van first indicates that its driver performed his designated function well. It does not, as the defendants contend, mean that the agents could no longer rely on the "lead car-load car" modus operandi as a justification for stopping the Ford van. The case cited by the defendants, United States v. Barragan-Martinez, 504 F.2d 1155 (9th Cir. 1974), is not on point. There, in the course of holding that the agents did not have reasonable suspicion to stop what they suspected was the "scout" car in a smuggling operation, the court said, "we refuse to take judicial notice of a smuggling modus operandi employing a scout car behind the load car." Id. at 1157 (emphasis added).

The present case, by contrast, involves not the stopping of a suspected "scout" car but the stopping of a suspected "load" car. The defendants, of course, have no standing to challenge the stopping of the Chevrolet van. Rakas v. Illinois, 439 U.S. 128 (1978). Moreover, unlike the agents in Barragan-Martinez, the agents here had an objective basis for suspecting that the vans were driving in tandem, which included their observation that the vans had switched positions. That the agents formed their belief that the Ford van was the load car only after they stopped the Chevrolet van is of no moment. Indeed, after realizing that they had been duped, the agents had even stronger grounds to suspect that the Ford van was, consistent with the anonymous tip, the load car in a marijuana smuggling venture.

We conclude that the totality of circumstances provided the agents with reasonable suspicion to justify the stop of the Ford van. Accordingly, the judgment of the district court denying the defendants' motion to suppress is AFFIRMED.