Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

No. 90-50276.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and LEAVY, Circuit Judges, and SAMUEL P. KING, District Judge.^* 

MEMORANDUM^** 

Petitioner Pedro Cardenas-Aguilar entered a conditional guilty plea to a charge of possessing a controlled substance with intent to distribute. He appeals the district court's denial of his motion to suppress evidence. We reverse.

Roving Border Patrol agents found approximately seventy-one pounds of marijuana in petitioner's car after stopping and searching the vehicle. They testified that they stopped petitioner's car for six reasons: (1) petitioner was virtually the only person on the highway who stared straight ahead rather than looking at the agents' flashing lights by the side of the road; (2) petitioner reduced his speed and repeatedly looked in his rear view mirror after the agents followed him for several minutes; (3) petitioner drove an older model car with a large trunk; (4) petitioner and his passenger appeared to be Hispanic; (5) the international border was nearby; and (6) the area was known for alien and drug smuggling.

Roving Border Patrol agents may make an investigatory stop only if they have reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975). Reasonable suspicion did not exist in this case. In United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989), we held that factors similar to those present here were insufficient to prove reasonable suspicion. The government attempts to distinguish that case on two grounds. First, in Hernandez-Alvarado, the defendant reduced his speed from 65-55 m.p.h., while here the petitioner reduced his speed from 65-35 m.p.h. Second, in Hernandez-Alvarado, the defendant looked at the agents and then quickly looked away, while here the petitioner was virtually the only person on the road who did not look at the agents at all. These two differences are insufficient to distinguish the cases; both are consistent with law-abiding activity. In fact, it is not at all unusual for perfectly innocent individuals being followed by a marked law enforcement vehicle to slow down in hopes that the vehicle will pass them by. We note, moreover, that in Hernandez-Alvarado the government presented evidence of additional factors that do not exist in the present case.

We have held that most of the factors cited above may be considered in determining reasonable suspicion. They are not, however, sufficient by themselves.

REVERSED.