Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1025 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Clyde Lee BREWER, Defendant-Appellant.

No. 88-5057.

United States Court of Appeals, Ninth Circuit.

Submitted March 24, 1989.* Decided Aug. 17, 1989.

Before GOODWIN, Chief Judge, and POOLE and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Clyde Lee Brewer appeals from his conviction of two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). Brewer contends that the district court erred by denying his motion to suppress his statements and evidence because the border patrol agents who stopped his vehicle lacked founded suspicion of criminal conduct. We review the existence of founded suspicion to justify an investigatory stop de novo and affirm. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988).

FACTS

On August 26, 1987, the government charged Brewer with two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). The following facts were adduced at an evidentiary hearing on Brewer's motion to suppress.

On August 11, 1987, Agent Dodson of the United States Border Patrol was conducting vehicle inspections at the Temecula, California checkpoint. The checkpoint was situated only on the northbound and not on the southbound lanes of Interstate 15. Between the north and southbound lanes was a thirty foot divide consisting of dirt and grass. At approximately 2:00 p.m., a woman in a small car pulled up to the checkpoint and told Dodson that a Ryder truck had just cut across from the slow lane of northbound I-15 to the fast lane. She claimed that the truck forced her to slam on her brakes and almost sideswiped her car, before making a U-turn across the center divide onto the southbound lanes.

Dodson testified that such U-turns are not permissible and a vehicle that turns around in such a manner just prior to the checkpoint is always pursued by border patrol agents. A "high majority" of these vehicles contain either drugs, aliens, or an intoxicated driver afraid to come through the checkpoint. Dodson further testified that rental trucks, similar to the Ryder truck seen by the informant, are frequently used to smuggle illegal aliens and that he had been involved in "quite a few" prior arrests involving Ryder trucks.

Immediately upon receiving the information concerning the Ryder truck, Dodson and another agent, Boubel, pursued the truck in a marked vehicle. Dodson and Boubel spotted the truck one-half mile from the checkpoint traveling at approximately thirty-five miles per hour in the slow lane. They pulled up behind the truck and Dodson observed Brewer who appeared nervous and "fidgeting" upon seeing the marked car coming up behind him. Dodson and Boubel decided to initiate an "immigration" stop on the truck and turned on their red lights and siren. The truck proceeded for approximately two miles, before it exited I-15, proceeded through a stop sign, and finally pulled over.

DISCUSSION

Brewer contends that the border patrol agents who stopped his truck lacked founded suspicion and therefore that evidence obtained from the stop must be suppressed. This contention is without merit.

The fourth amendment permits a brief investigatory stop of a vehicle if the officer involved has founded suspicion of criminal conduct. United States v. Cortez, 449 U.S. 411, 417 (1981); Thomas, 863 F.2d at 625. Founded suspicion exists when the officer is aware of specific articulable facts, together with rational inferences in light of the officer's experience and knowledge, that reasonably warrant suspicion that the vehicle contains illegal aliens or other contraband. Cortez, 449 U.S. at 417-18; Nicacio v. United States Immigration and Naturalization Serv., 797 F.2d 700, 702-03 (9th Cir. 1985).

The Supreme Court has identified several factors to be considered by officers in determining whether founded suspicion exists that justifies an investigatory stop. These factors include the characteristics of the area, its proximity to the border, the usual pattern of traffic on the particular road, and the previous experience with alien traffic. United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975). Information about recent illegal border crossing, observations of the drivers' behavior and aspects of the vehicle itself may also serve to establish founded suspicion. Id.

Additionally, information from an informant may be material to a determination as to the existence of founded suspicion, but tips completely lacking in any indicia of reliability do not warrant a police response and require further corroboration to develop founded suspicion. Adams v. Williams, 407 U.S. 143, 147 (1972); United States v. Sierra-Hernandez, 581 F.2d 760, 762 (9th Cir.), cert. denied, 439 U.S. 936 (1978). Further, government agents are entitled to place greater reliance on a tip provided by a citizen informant because the citizen lacks an apparent motive to provide false information. United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986).

The facts here established founded suspicion. The truck was first seen by the citizen informant a short distance from the checkpoint. The driver behaved erratically and dangerously, and his actions comported with those of a person involved in criminal activity who was attempting to avoid the checkpoint. Although the border patrol agents did not actually observe Brewer's truck driving erratically or witness the illegal U-turn, the information came from a citizen, rather than an anonymous informant; her statement would seem to qualify as an excited utterance under Rule 803(2) of the Federal Rules of Evidence, and therefore, the agents were entitled to place some reliance on the tip. Id. Moreover, the tip was corroborated by Dodson's knowledge that alien smugglers preferred to use rental vehicles and some make illegal U-turns to avoid the checkpoint.

When Dodson and Boubel encountered the truck about one-half mile from the checkpoint it was traveling southbound at approximately thirty-five miles an hour in the slow lane. Dodson observed Brewer who appeared nervous and fidgety. These observations, coupled with the informant's report, established founded suspicion. See United States v. Magana, 797 F.2d 777, 781 (9th Cir. 1986). Finally, United States v. Ogilvie, 527 F.2d 330, 332 (9th Cir. 1975), does not require a different conclusion as it involved only a legal U-turn without other circumstances.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3