Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1290 (9th Cir. 1988)

Nos. 87-5160, 87-5161.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN and CYNTHIA HOLCOMB HALL, Circuit Judges, and ALFREDO C. MARQUEZ,**  District Judge.

MEMORANDUM* 

Defendants-appellants Noel Armando Aispuro and Manuel de Jesus Zazueta-Baltran appeal their convictions for conspiracy to import cocaine, importation of cocaine, and possession of cocaine with intent to distribute. The incidents in this case occurred at Jacumba, a small city in California located about one-half mile from the Mexican border. There is no official port of entry in this area.

On September 22, 1986, at approximately 6:27 a.m., Border Patrol Agents Syzdek and Benavidez received a radio message that border sensor 1985 had gone off. Sensors are placed at certain points along the border where illegal entries are frequently made. The sensor involved in this case is located on a dirt road about 50 yards from an opening in the international border fence. It is known as the "water tank drive-thru." This is an area frequently used for smuggling. A car illegally crossing the border at this point would have to go over the sensor.

The sensor alert was a double hit, which indicated a northbound vehicle going away from the border. Syzdek drove to a point on Highway 80 where he could observe both dirt roads leading from the sensor. Highway 80 is south of Interstate 8 and runs east and west through the center of Jacumba. It took Syzdek 10 to 15 seconds to reach this location. About a minute after reaching the lookout point, the agents observed a silver GMC pick-up traveling north on the east dirt road. The GMC turned east onto Highway 80. Syzdek recognized neither the driver nor the vehicle as being local. The time element coincided with Syzdek's experience for the time it would take to get from the sensor to the lookout point where he observed the GMC. He was convinced the GMC had crossed the border.

The agents followed the GMC on Highway 80. While following the GMC they were notified that sensor 1985 had just gone off again with a double hit. From prior experience Syzdek believed that there had been a "double-car drive through." Two vehicles cross the border at about the same time, and the first vehicle (the decoy) tries to draw attention to itself and away from the second vehicle (the follow-up vehicle). Upon receiving the second sensor alert Syzdek radioed Border Patrol Agent Holman, who was twelve miles west of Jacumba, to watch westbound traffic on Highway 80. This was necessary because Syzdek had left the lookout point and could no longer see vehicles going west. Syzdek was watching for eastbound traffic on Highway 80, Holman for westbound traffic. Highway 80 is the only way to get to Interstate 8 from the water tank drive-thru.

After contacting Holman, Syzdek stopped the GMC approximately one mile from the lookout point and detained the driver, Baltran. Baltran had no documentation and was a Mexican citizen. At about this time, Syzdek observed four vehicles traveling eastbound on Highway 80. This was about three minutes after the second sensor alert. Syzdek thought he recognized two of the vehicles; the third was a school bus. Syzdek did not recognize the fourth vehicle, a brown utility truck. The arrival of the vehicles matched the time frame for a vehicle arriving from the second sensor alert.

Syzdek believed that one of the four vehicles was the follow-up vehicle. Syzdek followed the cars and eventually stopped the brown utility truck. Aispuro was the driver. He was nervous, his hands were shaking badly, and he was pale. He denied carrying anything in the truck. Syzdek asked Aispuro if he would mind showing him what was inside the truck. Aispuro did not say anything, but opened the door to get out. He either fell out or quickly got out of the truck causing Syzdek to draw his gun for safety reasons. Aispuro put his hands up and apologized for coming out of the truck so quickly. He said he had stumbled. Syzdek put his gun back in the holster and patted Aispuro down for weapons. Aispuro then said, "I need the keys." Syzdek took the keys from the ignition and handed them to Aispuro, who then opened the compartment in the driver's side of the utility truck and stepped back, revealing approximately 585 kilograms of cocaine.

WERE THE STOPS OF THE VEHICLES VALID TERRY STOPS?

We review de novo the district court's conclusion that Baltran and Aispuro were detained pursuant to valid Terry stops. United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985). Border Patrol agents "on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country." Brignoni-Ponce, 422 U.S. at 884. The "reasonable suspicion" (or "founded suspicion") necessary for a Terry stop requires less than full-fledged probable cause. Founded suspicion means that the officer must have "specific articulable facts together with rational inferences from those facts, that reasonably warrant suspicion" that a vehicle contains contraband. United States v. Garcia-Nunez, 709 F.2d 559, 561 (9th Cir. 1983). The assessment leading to such a suspicion is based on all the circumstances, including objective observations and considerations of modes of operation of certain types of crime and criminals. United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).

As the Court noted in Cortez,

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of law breakers. From these data, a trained officer draws inferences and makes deductions--inferences are deductions that might well elude an untrained person.

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

449 U.S. at 417-418.

Appellants argue that the totality of the circumstances in this case could not give rise to the reasonable suspicion necessary to justify the stop of Aispuro's vehicle. We have reviewed the record and, based on the totality of the circumstances, disagree with appellants. The record indicates:

(1) The first sensor strike was at 6:27 a.m. From Syzdek's experience it would be unlikely that traffic would be southbound, activating the sensor but going away from Highway 80, at this time of the morning. Both sensor alerts were double hits, which from Syzdek's experience with that particular sensor, indicated a northbound vehicle going away from the border.

(2) The time from the first sensor strike to the sighting of the first vehicle (the GMC pick-up) by Syzdek was consistent with an illegal crossing. Syzdek did not recognize the driver of the truck.

(3) The interval between the second sensor strike and the appearance of the utility van was consistent with an illegal crossing by the van and also consistent with the use of a "decoy". The arrival of the utility van matched the time frame for a vehicle arriving from the second sensor alert.

(4) Syzdek was convinced that the sensor strikes involved a 2-car drive-thru and that the second vehicle would be something big, like a pick-up.

(5) Although the brown utility vehicle was traveling with three others, Syzdek recognized or felt that two of them looked familiar as local vehicles and the third one was a school bus. He did not recognize the brown utility truck or the driver.

(6) The Jacumba area contains several areas that are notorious or popular for smuggling of aliens or contraband. The road leading across the border to the location of the sensor is commonly used by vehicles containing illegal aliens and contraband. That is the reason the sensor is located there.

(7) Syzdek followed the brown utility truck to the Jacumba interchange. At this point the brown truck slowed down and turned north underneath the freeway bridge and headed west onto the westbound lane of Interstate 8. From Syzdek's experience the general practice of Jacumba residents, if they are going to a point west of Jacumba, is to stay on Highway 80 instead of driving to the Jacumba interchange to get on the freeway.

Because we consider the totality of the circumstances, no single fact or group of facts is determinative; but the totality of the circumstances, considered in light of Syzdek's experience and expertise, was sufficient to provoke the reasonable suspicion necessary to justify the modest intrusion of a vehicular Terry stop. Therefore, we hold that both Aispuro and Baltran were detained pursuant to valid Terry stops.

"The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." Brignoni-Ponce, 422 U.S. at 880-82; see United States v. Parr, No. 86-3224, slip op. 4139 (9th Cir. April 7, 1988). Accordingly, we address the validity of the search of Aispuro's vehicle.

DID AISPURO VOLUNTARILY CONSENT TO THE SEARCH OF THE UTILITY VAN?

We review the district court's factual finding that Aispuro voluntarily consented to the search of his vehicle for clear error. United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985). Courts determine whether consent to a search was voluntarily given by considering the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973).

Appellants argue that Aispuro did not voluntarily consent to the search of his vehicle because Syzdek created a coercive atmosphere by drawing his revolver. Here, Syzdek drew his revolver in response to a specific stimulus; Aispuro's precipitous exit from the van. Syzdek holstered his weapon after Aispuro had descended from the van. Several moments elapsed before Aispuro opened the van, during which he had several opportunities to refuse. Moreover, Aispuro had initially responded to Syzdek's request before the gun was ever drawn. Considering the totality of the circumstances, we are unable to conclude that the district court clearly erred when it found that Aispuro consented voluntarily.

CONCLUSION

We affirm the district's decisions that the stops of Baltran's and Aispuro's vehicles were valid Terry stops, and that Aispuro voluntarily consented to the search of his vehicle. We do not reach any of the other grounds relied on by the district court.

The convictions of appellants are AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 **

The Honorable Alfredo C. Marquez, United States District Judge for the District of Arizona, sitting by designation