Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1988)

MEMORANDUM^* 

Defendant-appellant Arsenio Benitez-Urquidez appeals his conviction for conspiracy and creating and supplying fraudulent documents for use in applications for adjustment of alien residence status, in violation of 18 U.S.C. §§ 371 & 2; 8 U.S.C. § 1160(b) (7) (A) (ii) (1988). Benitez-Urquidez challenges the denial of his pre-trial motion to suppress. He contends the Government lacked founded suspicion for an investigatory automobile stop. We agree and we reverse.

Founded or reasonable suspicion is required at the time an investigatory stop is initiated in order to justify the stop. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). This standard mandates that based upon the totality of the circumstances, "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). See also United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989). Whether a founded suspicion exists presents a mixed question of law and fact which is reviewed de novo. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985). The findings of fact forming the basis of the district court's conclusion are reviewed for clear error. Id.

On May 1, 1988 at about 5:30 p.m., Town of Wellton Deputy Marshal Ronnie McCaslin saw an unfamiliar vehicle parked across the street from codefendant Johnson's house. Johnson had previously been arrested. McCaslin intended to observe the car from a distance but it began to pull away. McCaslin therefore decided to make a "routine traffic stop."

Under the totality of the circumstances, we conclude founded suspicion did not exist for the stop because there was no particularized basis for suspecting criminal activity. McCaslin testified he observed no traffic violation. He was aware that three burglaries had recently occurred in the area; however, he had no report of a burglary in progress. McCaslin was merely suspicious of the unfamiliar vehicle near the Johnson house. He testified that he based this suspicion on his ten-second view of the vehicle and its three occupants. Based upon this record, the investigatory stop was therefore not supported by founded suspicion.

As a result, we do not address other issues raised by the parties on appeal.

REVERSED.