Unpublished Disposition, 923 F.2d 864 (9th Cir. 1990)

MEMORANDUM^**

Appellant-defendant Francisco Gonzales appeals his conviction on drug-related charges and the district court's denial of his motion to suppress evidence. Gonzales contends that the arresting border patrol agent did not have reasonable suspicion to stop his car, and thus conducted an illegal search and seizure in violation of the fourth amendment. We agree and reverse.

On January 5, 1990, sometime after 12:50 p.m., Gonzales, a juvenile, was driving north on Arizona Highway 19 near Nogales, Arizona. He was stopped by Agent Maldonado, a uniformed border patrol agent in a marked car, and arrested for possession with intent to distribute marijuana. When Agent Maldonado first noticed Gonzales, they were traveling in opposite directions. Maldonado noted that Gonzales was traveling alone at a time when most other cars contained more than one person. He became suspicious when he noticed that Gonzales was looking at him and, as their vehicles approached each other, Gonzales snapped his head forward. Maldonado made a U-turn and began to follow Gonzales. When Gonzales saw Maldonado again he turned to look at the agent, taking his eyes off the road and causing his vehicle to swerve slightly into another lane. Maldonado noted that Gonzales was a high-school-age Hispanic and assumed that if he was a United States citizen he would have been in school. Maldonado stopped Gonzales because he suspected that Gonzales was an illegal alien.

Whether Maldonado had reasonable suspicion to justify an investigatory stop is a mixed question of law and fact which we review de novo. United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988).

Gonzales contends that there was insufficient evidence to support the agent's stop of his vehicle. An officer may stop a moving vehicle for investigative purposes if he is aware of specific articulable facts which support a reasonable suspicion that criminal activity is afoot. United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987). This court has found otherwise innocent behavior sufficient to justify an investigatory stop when the totality of the circumstances warrant the intrusion. However, there were more facts supporting a finding of reasonable suspicion in those cases than exist here. See, e.g., United States v. Malone, 886 F.2d 1162 (9th Cir. 1989); United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990); United States v. Sutton, 794 F.2d 1415 (9th Cir. 1986).

In this case the government has much less particularized information supporting its claim that Agent Maldonado had reasonable suspicion: (1) Gonzales appeared out of place driving on the highway at a time when Agent Maldonado believed school was in session, (2) Gonzales appeared Hispanic, and (3) Gonzales appeared nervous when he noticed the agent was observing him. At the time of the stop, Maldonado believed that Gonzales, if he was a United States citizen, should have been in school instead of driving on the highway. The government offers nothing more to support this belief. In addition, the government fails to explain the apparent inconsistency between the agent's observation that many families were on the road returning from the holidays and his belief that school was back in session.

In United States v. Robert L., 874 F.2d 701 (9th Cir. 1989), a border patrol agent stopped a juvenile at 1:45 p.m. believing he should have been in school rather than driving along the road. We found that belief mistaken and unreasonable since students at the local high school were released at 1:30 p.m. and we declined to consider it as a factor contributing to reasonable suspicion. Id. at 705. Here, the government fails to demonstrate that the agent's belief was reasonable by not explaining what time students were released from school, whether school was actually in session given the proximity to the holidays, or any other factors that would support the agent's belief. Age, like race, " [a]lthough it can be a factor contributing to a finding of suspicious circumstances, without more it falls far short of creating the articulable suspicion necessary for an investigatory detention." Id.

In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme Court held that officers may not arbitrarily stop all persons of Mexican appearance and question them about their citizenship without any reasonable suspicion that they are illegal aliens. The Court noted that a driver's behavior is one of the factors that may establish reasonable suspicion. Id. at 884-85. In United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989), we found that defendant's looking toward the agents in a marked car alongside defendant's vehicle and then quickly turning away was insufficient to create reasonable suspicion.

Here, Gonzales was reportedly driving three miles over the speed limit when Maldonado first began following him, but Gonzales immediately reduced his speed when he noticed Maldonado's car. While the agent noted that Gonzales' speed and swerving made him suspicious, he told the district court that he did not stop Gonzales' car for either of these reasons. We do not find Gonzales' behavior an extreme reaction to being followed by a marked car. Because the circumstances here did not justify the investigatory stop, the evidence seized as a result of the stop should not have been admitted. The judgment of the district court is REVERSED.