Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^* 

Alex Angelo Ortiz appeals the judgment of conviction entered after his conditional guilty plea to one count of possession with intent to distribute 184 pounds of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (C). Pursuant to Federal Rule of Criminal Procedure 11(a) (2), Ortiz reserved his right to appeal the district court's denial of his motion to suppress the marijuana, which he contends was seized after an unlawful stop and seizure. We have jurisdiction to review the district court's ruling on the motion to suppress under 28 U.S.C. § 1291, and we reverse.

We review de novo the district court's determination that Border Patrol Agent Cole had reasonable suspicion to justify the investigatory stop of the appellant's truck. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989). "An officer 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." Id.

In its brief to this Court, the government lists some twelve factors that it maintains justify the initial investigatory stop. However, we need not decide whether those factors would support a finding of reasonable suspicion, because the government did not introduce evidence at the suppression hearing to support the factual assertions it makes to this Court. The only government witness at the hearing, Customs Bureau Special Agent Parker, did not become involved in the case until Ortiz had been in custody for nearly 36 hours, and Agent Parker had nothing to do with the initial stop of Ortiz' truck. That the Agent was aware of facts, through his review of the file and conversations with, among others, the arresting officer, is of no significance for purposes of ruling on the legality of the stop; the government must introduce competent evidence to permit the district judge to determine for himself whether the stop was lawful.¹  Here, the government failed utterly to satisfy this burden, and it cannot correct its shortcomings by supplementing the record before this Court.

Because the district court record contains insufficient evidence to support the judge's finding that the stop was justified by reasonable suspicion, we reverse the denial of the motion to suppress. And because we must conclude that the initial stop was unlawful, all evidence subsequently obtained from Ortiz, including his confessions, is "fruit of the poisonous tree," and must therefore be excluded as well. Wong Sun v. United States, 371 U.S. 471, 488 (1963).

REVERSED.