Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^* 

Appellant-defendant Dioselina Robles-Arispuro (Robles) appeals her conviction following a jury trial for possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii). Robles argues that the border patrol agents lacked reasonable suspicion to stop the car in which she was traveling. Thus, she claims that her motion to suppress the evidence derived from the search of the vehicle should have been granted. The marijuana was discovered as a direct result of the search of the vehicle. We conclude that the district court's denial of Robles' motion to suppress was error and therefore reverse the conviction.

We review de novo a district court's founded suspicion determination. United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989). An agent 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." United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989) (citing United States v. Cortez, 449 U.S. 411, 416-18 (1981)). The totality of the circumstances must be evaluated in assessing whether a particular set of circumstances constitutes founded suspicion. Cortez, 449 U.S. at 417; Robert L., 874 F.2d at 703. Although "an [agent] may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the [agents] unbridled discretion in making a stop." Nicacio v. United States I.N.S., 797 F.2d 700, 705 (9th Cir. 1985).

In this case, the Government advanced as the justification for the stop the fact that this was a large family style vehicle, which was visibly dusty; that it was going between 45 to 55 miles per hour in a 65 mile per hour zone; that the vehicle was travelling in the left hand lane and pulled suddenly into the right hand lane when the border partrol car came up behind it; and that the occupants of the vehicle reacted nervously and would not make eye contact with the officers when they drove along side.

In Hernandez-Alvarado, this court found the various factors relied on by the officers insufficient to justify an investigatory stop. 891 F.2d at 1418. In reviewing the totality of the circumstances for specific and articulable facts, the court stated that " [n]o single factor is dispositive in this assessment; the issue is whether 'taken together they amount to reasonable suspicion.' " Id.

The most significant factors relied on by the officers in Hernandez-Alvarado were: (1) the nervous demeanor of both the defendant and his passengers; (2) the reduction in speed from 65 to 55 mph; (3) the presence of a two-way antenna on the trunk of the vehicle; (4) defendant's residence in a neighborhood on the U.S.-Mexican border which was under investigation for narcotics activity; (5) the license plate bracket indicating that the car had been purchased from a dealership associated with drug trafficking; and (6) the size of the defendant's trunk. 891 F.2d at 1418. The court concluded that " [w]hile [the factors] may allow certain inferences to be drawn, they describe too many individuals to create a reasonable suspicion that this particular defendant is engaged in criminal activity." Id. at 1418-19. Although the court was mindful of the difficulties of law enforcement officers in these situations, it stated that "police officers may not infringe the privacy rights of individuals without just cause, regardless of any eventual determination of guilt." Id. at 1419.

We also rely on our decision in Robert L. to support our finding that the agents lacked founded suspicion in this case. 874 F.2d at 701. There, the court concluded that the officer lacked founded suspicion justifying the investigatory detention of a juvenile's automobile even though drug smugglers had recently been using juveniles to smuggle drugs in the area and the juvenile was driving a car with a large trunk capacity.¹  Id. at 705. Certain characteristics of the vehicle may support a finding of reasonable suspicion. Id. at 704. However, a large trunk alone will not create founded suspicion. Id. at 704-05. We also indicated in Robert L. that while erratic driving is a factor that can properly support a finding of founded suspicion, it was significant that no traffic laws were violated and that the erratic driving caused no traffic disturbance. Id. at 704. Finally, the court emphasized that visual contact or lack of it was highly subjective and must be evaluated on a case-by-case basis. Id. at 703.

As in Hernandez-Alvarado and Robert L., this combination of factors describes too many innocent drivers to create founded suspicion to stop the vehicle. Therefore, we conclude that the district court's denial of Robles' motion to suppress was error, and the conviction, based on the marijuana discovered as a result of the search, must be reversed.

REVERSED.