Unpublished Disposition, 928 F.2d 409 (9th Cir. 1989)

MEMORANDUM^* 

Steve V. Arbizo appeals from the judgment entered upon his conviction by a jury of the crime of possession with intent to distribute 50 kilograms or more but less than 100 kilograms of marijuana. Arbizo does not challenge the sufficiency of the evidence of his guilt. He seeks reversal on the following grounds:

One. The district court erred in denying his motion to suppress evidence found in his vehicle. Two. The district court erred in denying his motion for a mistrial. Three. The district court erred in its instructions to the jury.

We discuss each of these issues and the facts pertinent therein under separate headings. We conclude that none of these contentions has merit and affirm.

* Validity of the Motion to Suppress

Arbizo's attack on the order denying his motion to suppress is twofold. First, he argues that the officers lacked reasonable suspicion to justify an investigatory stop. Alternatively, he asserts that the officers did not have probable cause to believe that his automobile contained contraband before they searched it.

We review de novo a district court's conclusion that the officers had a founded suspicion before they stopped an automobile. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). Law enforcement officers

can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulated facts that criminal activity 'may be afoot' even if the officer lacks probable cause.

United States v. Sokolov, 490 U.S. 1, 109 S. Ct. 1581, 1585 (1989). In determining whether a reasonable suspicion existed prior to the stop, a reviewing court must consider "the totality of the circumstances--the whole picture." United States v. Cortez, 449 U.S. 411, 417, (1981). In assessing whether criminal activity is afoot, law enforcement officers may rely upon "common sense conclusions about human behavior." Id. at 418, A series of innocent acts when taken together may amount to a reasonable suspicion. United States v. Sokolov, 109 S. Ct. at 1586-1587. In United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied --- U.S. ----, 110 S. Ct. 847, (1990) we held that separate acts, each of which is consistent with innocent activity, may support a finding of reasonable suspicion when viewed collectively. Id. at 652. " [L]aw enforcement officers do not have to rule out innocent behavior." United States v. Sutton, 794 F.2d 1415, 1427 (9th Cir. 1986). We are also required to look at the articulated facts in light of the training and experience of the officer. " [A] trained officer draws inferences and makes deductions-inferences and deductions that might well elude an untrained person." United States v. Cortez, 449 U.S. 411, 418 (1981). After an independent review of the record, we are persuaded, after applying these principles to the circumstances known to the officers prior, that the stop of Arbizo's automobile was justified by facts that demonstrated a reasonable suspicion of criminal activity.

Border Patrol Agent Eric Matthew Odden testified at the suppression hearing regarding his observations prior to stopping Arbizo's automobile. Shortly after 2:00 a.m. on January 29, 1989, Agent Odden and his partner, Richard Chamberlain, were parked in the median on the I-10 highway, between the lanes, observing traffic. They were parked halfway between the Vail Road and the Patagonia exit onto Highway 83. Agent Odden described the area as rural. They were in a green Border Patrol vehicle that bore the agency's insignia and had emergency lights mounted above in a pushbar. Their assignment was to detect and intercept persons smuggling undocumented aliens or controlled substances. Agent Odden had been a member of the United States Border Patrol for approximately one and one half years on the date he detained and arrested Arbizo. Prior to that time he had served as deputy sheriff in Toole County, Montana for two and one-half years. When he entered the Border Patrol, Agent Odden received training to prepare for his duties for 17 weeks.

Prior to stopping Arbizo, Agent Odden had arrested approximately 250 persons under similar circumstances. These arrests led to prosecutions in state and federal courts. About 80% of these persons were Hispanic.

Approximately 35 or 40 of the 250 persons arrested were operating vehicles that contained CB radios. The CB radios are used for communications by smugglers. Agent Odden testified that, in making these prior arrests, he had observed that vehicles that are used to smuggle aliens "have a tendency to run in tandem." The smugglers drive close together, and in the same lane. When smugglers drive in tandem, one vehicle is used as a "decoy" to try to draw the attention of law enforcement officers away from the "load" vehicle that is actually carrying undocumented aliens or contraband. Agent Odden had also observed in approximately 80% of these 250 cases he has investigated that the driver of the load car would attempt to "ditch" or abandon it. Prior to attempting to ditch the load vehicle, Agent Odden had observed, on prior occasions, that the driver would speed up and then tap the brakes, which caused the brake lights to light up, as he or she hunted a place to abandon the load vehicle.

Agent Odden had also observed on frequent occasions, in making prior arrests, that the vehicles used by smugglers were either "fairly new" or had been recently purchased. As a result, instead of license plates, they would have a temporary license sticker on the rear window.

Shortly after 2:00 a.m., Agent Odden saw two vehicles headed eastbound on Highway 83. Agent Odden was on the passenger side of the Border Patrol vehicle. The vehicles appeared to be traveling in tandem approximately a car length apart. There were no other vehicles on Highway 83 at that time. As these vehicles were driven over the Highway 83 overpass, Agent Chamberlain turned on the headlights to get a better view of them. Agent Odden observed the vehicles come to a stop at a stop sign at a frontage road. The vehicles proceeded in tandem northward on the frontage road. As the vehicles crossed in front of the Border Patrol vehicle, Agent Chamberlain again turned on the headlights. The other vehicles were approximately 150 yards away. Agent Odden observed that the vehicles were not new. Each had a CB antenna. The color of the car in front was light brown. The rear vehicle was blue. After those automobiles passed the Border Patrol vehicle, Agent Chamberlain drove the Border Patrol vehicle over the ramp onto Vail Road. Officer Odden observed the brown automobile turn into a large parking lot next to the Vail Steakhouse. The restaurant had closed at 1:00 a.m. The parking lot was very dark. The only light source was a single security light. There were no other vehicles in the parking lot.

The blue vehicle continued northbound on the road towards Vail. After observing this, the Border Patrol agent concluded that the blue vehicle was a decoy and did not follow it. The brown vehicle then left the parking lot and proceeded in a northerly direction on the frontage road. The Border Patrol vehicle was driven in the southerly direction to meet the brown vehicle.

As the brown vehicle approached, the agents noticed that the driver was Hispanic. This fact was consistent with Officer Odden's prior observations that a majority of the drivers of load vehicles were Hispanics. The Border Patrol vehicle was then driven onto the Vail overpass. The vehicles lights were turned off so that the officers could get a better view of the brown automobile.

Officer Odden observed that the brake lights were activated twice. Officer Odden inferred from this conduct that the driver was reducing his speed in order to find a place to ditch or abandon the brown vehicle.

The brown car next made a U-turn and proceeded south on the frontage road until he reached the onramp to the I-10 highway. He then drove onto the westbound lanes of the I-10.

The brown car accelerated to a speed of 75 miles per hour. The maximum speed limit was 65 miles per hour. Agent Chamberlain followed the brown car until he caught up with it. Agent Odden observed that it had no license plates. It had a temporary sticker on the rear window. This factor also fit into Agent Odden's prior experience with the practices followed by smugglers in that area.

As the Border Patrol vehicle pulled alongside the brown car, Arbizo looked at the agents. He then turned and glanced at the speedometer and thereafter kept his eyes on the right hand side of the roadway. Arbizo appeared to be gripping the steering wheel firmly with his left hand. Officer Odden formed the opinion that Arbizo was trying to make sure that he did nothing that would arouse any suspicion.

The Border Patrol vehicle was driven alongside the brown car for two to three miles. During this period of time, Officer Odden noticed that the seat on the passenger side was reclined "all the way." This fact caused Officer Odden to suspect that something might be hidden between the back of the passenger seat and the floorboards in front of the backseat.

After making these observations, Agent Chamberlain maneuvered the Border Patrol vehicle behind the brown car and activated the red lights. Arbizo did not stop his vehicle. The brown car proceeded for approximately one mile after which the Border Patrol's siren was turned on. Arbizo did not stop until he had proceeded an additional three miles.

An officer must have at least a reasonable suspicion of criminal activity before signaling a motorist to stop his vehicle. United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989). Accordingly, we must determine from this record whether Officer Odden articulated sufficient facts to demonstrate a reasonable suspicion that Arbizo was engaged in smuggling activities at the time Agent Chamberlain activated the red lights.

After an independent examination of the facts articulated by Agent Odden, we have concluded that Arbizo's conduct was consistent with the modus operandi of a majority of the smugglers arrested in the area of Arizona patrolled by Agent Odden and therefore, a reasonable suspicion existed that criminal activity was afoot.

Arbizo was observed driving in tandem with another car. Both cars had CB radios. The vehicles did not have license plates. After the Border Patrol vehicle's headlights were turned on, the lead vehicle drove away while the other car drove into the parking lot of a restaurant that was not open for business. This conduct caused Agent Odden to suspect that the lead car was the decoy vehicle, and Arbizo's car was loaded with undocumented aliens or a controlled substance.

Arbizo was also observed activating his brake lights, although there was no other vehicle on the highway. This caused the officers to suspect that Arbizo was trying to abandon or "ditch" his automobile after seeing the Border Patrol's vehicle headlights turned as he drove over I-10 on the Highway 83 overpass.¹  Arbizo drove at an illegal rate of speed as the Border Patrol vehicle attempted to catch up with him. The fact that Arbizo appears to be Hispanic also matched the ethnic background of the vast majority of smugglers in that part of Arizona.

Arbizo argues that the fact that Agent Odden observed two cars driven in tandem is insufficient to demonstrate reasonable suspicion. He also argues that the fact that Arbizo activated his brake lights is not enough to justify the detention.

Arbizo's argument ignores the instruction of the Supreme Court that we must look to the totality of the circumstances as viewed through the eyes of a trained law enforcement officer to determine whether a founded suspicion justified a detention. United States v. Cortez, 449 U.S. at 418. Instead, he asks us to look at the observations of the officers separately. He also asks this court to discount Agent Odden's observations because driving in tandem and the activation of break lights appears innocent, at least to the untrained eyes of his attorney. In United States v. Sutton, 794 F.2d 1415 (9th Cir. 1986), we held that

[t]he test is not whether the conduct under question is consistent with innocent behavior; law enforcement officers do not have to rule out the possibility of innocent behavior.

Id. at 1427.

We have previously noted that some of the factors articulated by Agent Odden can be indicative of smuggling activities. In United States v. Robert L., 874 F.2d 701 (9th Cir. 1989), we pointed out that it is appropriate to consider the circumstance that the vehicle was driving in tandem. Id. at 704. In United States v. Larios-Montes, 500 F.2d 941, 943-944 (9th Cir. 1974), cert. denied, 422 U.S. 1057 (1975), we stated that a suspicion based on evidence of a " 'lead car-load car' " modus operandi, whereby two cars travel together during a smuggling venture with the first car operating primarily as a scout car can be considered along with other evidence as showing a founded suspicion justifying at stop. Id. at 943-44.

Arbizo's reliance on United States v. Barragan-Martinez, 504 F.2d 1155 (9th Cir. 1974) is misplaced. In Barragan-Martinez, the government, for the first time on appeal, requested that we take judicial notice of the scout car-load car modus operandi. We declined to do so. Id. at 1157. No such request has been made in this matter. Agent Odden testified in some detail regarding the use of the decoy-lead car tactic by smugglers in the Tucson area.

The record shows that Arbizo appeared to be Hispanic to Agent Odden. We recognize that the fact that Arbizo is Hispanic cannot, standing alone, justify the stopping of his vehicle. In United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985), cert. denied, 486 U.S. 1017 (1988), we stated as follows:

[A]lthough race or color alone is not a sufficient basis for making an investigatory stop, [citations omitted] racial appearance may be considered as a factor contributing to a founded suspicion of criminal conduct.

Id at 1402-03. We wish to make it unmistakably clear that this circumstance, without more, would not persuade us that Agent Odden had a reasonable suspicion that Arbizo was engaged in illegal activity. The record in this case, however, contains other far more persuasive circumstances that demonstrate that Agent Odden had a reasonable suspicion that Arbizo was engaged in criminal activity.

Agent Odden testified that smugglers in the Tucson area used recently acquired vehicles which do not have license plates and contain CB radios. In Robert L., we stated: " [I]t is well settled that certain characteristics of the vehicle detained may support a finding of reasonable suspicion." 874 F.2d at 704. We recognize that either of these factors, when viewed separately, might not demonstrate a reasonable suspicion. For example, the record in this case shows that in rural areas it is not uncommon for passenger cars to have CB radios. Our duty, however, is to look at the totality of the circumstances and not to single out, and then disregard, discrete facts articulated by trained officers. United States v. Sokolov, 490 U.S. 1, 109 S. Ct. 1581, 1585 (1989).

Arbizo drove his vehicle 10 miles an hour faster than the maximum speed limit. He also activated his brake lights twice on a highway that had no other traffic on it. We have commented in other cases that erratic driving can be considered by a reviewing court in determining whether a founded suspicion justified a detention. See United States v. Robert L., 874 F.2d at 703. See also United States v. Rocha Lopez, 527 F.2d 476, 478 (9th Cir. 1975). cert denied 425 U.S. 977 (1976).

Arbizo avoided looking at the occupants of a marked Border Patrol vehicle and, instead, kept his eyes on the right side of the road. In Robert L., we pointed out that "the manner in which a suspect looks at or avoids looking at an officer can be a factor in assessing whether criminal activity is afoot." Id. at 703. We also commented, however, that avoidance of visual contact "must be evaluated in light of all the circumstances of each case." Id. at 703. In reaching our decision in this matter, we have not focused solely on the fact that Arbizo avoided eye contact with the Border Patrol agents. We are required, however, to consider all factors articulated by Agent Odden.

We are persuaded from our independent assessment of the totality of circumstances set forth in the record, that the facts articulated by Agent Odden demonstrate that reasonable suspicion existed to detain Arbizo when Agent Chamberlain activated the red lights. The undisputed facts in the record demonstrate that Arbizo's evasive conduct in transporting contraband substances was similar to that observed by an experienced Border Patrol agent in many prior arrests. These circumstances were corroborated independently by Arbizo's entry into the parking lot of closed restaurant after 1:00 a.m., the condition of the passenger seat, his excessive speed, and the unusual braking activity on an empty highway. The district court did not err in concluding that reasonable suspicion justified stopping Arbizo's vehicle.

II

Justification for a Warrantless Search

Arbizo alleges that the record does not contain sufficient facts to demonstrate probable cause to search the automobile he was driving. He argues that no facts were discovered after the Border Patrol agents activated the red lights on their vehicle to establish probable cause to conduct a search. We review de novo whether probable cause to conduct a warrantless search is shown by the record. United States v. Normandeau, 800 F.2d 953, 957 n. 5 (9th Cir. 1986). "Founded suspicion may ripen into probable cause to arrest or search through the occurrence of after-the-stop facts and incidents." United States v. Avalos-Ochoa, 557 F.2d 1299, 1303 (9th Cir. 1977), cert. denied, 439 U.S. 974 (1978).

After the red lights were activated on the Border Patrol vehicle, Arbizo did not stop. After he had traveled one mile, the siren was turned on. Arbizo continued down the highway for another three miles before he stopped. We held in United States v. Avalos-Ochoa, that the fact that a person speeds away after seeing red lights on a police vehicle, from a Border Patrol agent who has a reasonable suspicion, will support a determination of probable cause. Id. at 1303.

Agent Odden testified that smugglers who need space in the trunk to conceal contraband will remove items normally stored there and place them in the back seat. Agent Odden observed a tire, a jack, and an ice chest in the back seat of the car. The totality of the circumstances observed by Agent Odden established probable cause to search the vehicle.

III

Alleged Prosecutorial Misconduct

Arbizo contends that the prosecutor committed misconduct in remarks he made to the jury, over objection of defense counsel. Arbizo asserts that the prosecutor's comments implied that defense counsel had told their client "what to testify" after disclosing the police reports to him. The district court denied Arbizo's motion for a mistrial. We review the denial of a motion for mistrial for abuse of discretion. United States v. Segal, 852 F.2d 1152, 1155 (9th Cir. 1988).

Arbizo has failed to argue or demonstrate that the prosecutor's comments were prejudicial. The evidence against Arbizo was overwhelming. The car he was driving at the time of his arrest contained a bag of marijuana in the backseat and an additional 154 pounds in the trunk. When he was arrested he claimed the automobile was not his and that he did not have the key to the trunk. Later, the key to the trunk was found in his pocket during the booking procedure. At trial Arbizo admitted that he lied to the police concerning the time he left a bar in Mexico before driving to the Vail Steakhouse.

Misconduct by a prosecutor does not compel reversal unless a showing is made that the error was prejudicial. United States v. Brown, 829 F.2d 760, 766 (9th Cir. 1987), cert. denied, 485 U.S. 991 (1988). Assuming arguendo that the prosecutors remarks were improper, the error appears to have been harmless. The district court did not abuse its discretion in denying the motion for a mistrial.

IV

Alleged Instructional Error

Arbizo alleges that the district court erred in instructing the jury that it could

infer that the defendant knowingly possessed and distributed a controlled substance from the fact that the defendant possessed a large quantity of the substance.

The court also instructed the jury that " [w]hether or not you draw such an inference is entirely up to you." Arbizo maintains that the jury was thus instructed that it could presume that he had knowledge of the nature of the controlled substance in the vehicle. We review de novo a claim of instructional error. United States v. Mundi, 892 F.2d 817, 818 (9th Cir. 1989).

The court's instruction accurately reflected the law of this circuit. In United States v. Mora, 876 F.2d 76 (9th Cir. 1989), we held that " [p]ossession of a large quantity of narcotics alone may be sufficient to support a finding that one knowingly possessed the heroin." Id. at 77-78. A trial court may not admonish a jury that an element of a crime is presumed. Francis v. Franklin, 471 U.S. 307, 313 (1985). Contrary to Arbizo's contention, the court's instructions did not require the jury to presume that he knowingly possessed the marijuana. The jury was told that they were free to reject the inference of knowledge from the possession of a large quantity of marijuana. The court did not err in its instructions to the jury.

AFFIRMED.