Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1096 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Francisco Anibal NUBES-SALAZAR, Defendant-Appellant.

No. 88-1357.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 31, 1989.* Decided Nov. 16, 1989.

Before TANG, NELSON and REINHARDT, Circuit Judges.


MEMORANDUM** 

Francisco Anibal Nubes-Salazar appeals his conviction, following a conditional guilty plea, for possession with intent to distribute marijuana. Nubes-Salazar contends the district court erred by denying his motion to suppress evidence seized following an allegedly illegal automobile stop because the officer did not have a founded suspicion to stop his vehicle. We have jurisdiction under 28 U.S.C. § 1291 and we reverse.

We review de novo whether there was founded suspicion to justify an investigatory stop. United States v. Sanchez-Vargas, 878 F.2d 1163, 1166 (9th Cir. 1989); United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988).

Founded suspicion is the degree of suspicion, aroused by specific noncriminal acts, sufficient to warrant further investigation. United States v. Sokolow, 109 S. Ct. 1581, 1587 (1989). Founded suspicion cannot be defined by any rigid set of factors, but rather is based upon the totality of the circumstances, including the officer's training and experience. Sokolow, 109 S. Ct. at 1585 (suspect aroused a founded suspicion because he was a nervous airline traveler who used an alias to go to drug source city, paid cash for his tickets, stayed at destination only 48 hours, and checked none of his luggage); United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989) (founded suspicion based on reliable informant's tip that defendant was engaging in unlawful activity and officer's knowledge of the common mode of criminal operation). Although the officer must not rule out the possibility that a suspect's behavior is innocent, the specific articulable facts relating to the defendant's potential for criminal behavior must "exist at the time the officer initiates the stop." Thomas, 863 F.2d at 625-27 (suspects' age, sex, and race, the number of suspects and erratic driving sufficient to form founded suspicion).

In general, founded suspicion sufficient to justify the investigatory stop of a vehicle may focus on the characteristics of the vehicle if those factors are common to the vehicles known to be employed in a certain type of criminal enterprise. United States v. Magana, 797 F.2d 777, 781 (9th Cir. 1986). The officer may also consider the time of day, the reputation of the area for smuggling aliens, the carriage of the vehicle and the driving pattern of the suspect. See, e.g., United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir. 1984) (founded suspicion based on three non-local vehicles, two of which appeared heavily laden, traveling in tandem along a notorious smuggling route); United States v. Rocha-Lopez, 527 F.2d 476, 478 (9th Cir. 1975) (notorious area close to border, early morning hours, out of town car slowing suddenly after seeing marked patrol car and Mexican appearance constitute founded suspicion for stop), cert. denied, 425 U.S. 977 (1976). But see United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989) (no founded suspicion where no traffic laws broken, no tandem driving, vehicle did not appear heavy, and driver had juvenile appearance).

Here, Border Patrol Agent Cabazos considered the following substantiated factors before stopping Nubes-Salazar's vehicle: the sudden slowing of the vehicle, see Rocha-Lopez, 527 F.2d at 478; and the appearance of heavy cargo in the vehicle, see Medina-Gasca, 739 F.2d at 1453.

The other factors that Agent Cabazos allegedly relied upon appear to have been formed after the stop. Thus, the totality of the circumstances here do not establish that Agent Cabazos had a founded suspicion, sufficient to warrant further investigation, at the time Nubes-Salazar's vehicle was stopped. See Sokolow, 109 S. Ct. at 1585; Robert L., 874 F.2d at 705; Thomas, 863 F.2d at 625-27.

REVERSED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Nubes-Salazar's request for oral argument is denied

 **

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 Circuit R. 36-3