Unpublished Disposition, 896 F.2d 555 (9th Cir. 1989)

MEMORANDUM^* 

We agree with the district court that appellant's variance in speed upon seeing the marked patrol car, his refusal to look at the patrol car even when it pulled directly alongside his car, and the fact the car he was driving was apparently registered to someone else provided the "minimal level of objective justification for making the stop." United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989) (quotation omitted). See e.g., U.S. v. Magana, 797 F.2d 777, 781-82 (9th Cir. 1986); United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir. 1985).

United States v. Hernandez-Alvarado, No. 88-1265 slip op. 14415 (9th Cir. Dec. 14, 1989), though factually similar, does not require a contrary result. The majority in Hernandez-Alvarado described the case as presenting a "close question." Id. at 14420. "Whenever the law draws a line there will be cases very near each other on opposite sides." Hamling v. United States, 418 U.S. 87, 124 (1974) (quoting United States v. Wurtzbach, 280 U.S. 396, 399 (1930)). The agents' prolonged surveillance of appellant's vehicle followed by their pause alongside appellant's vehicle while the two cars continued abreast down the highway constitute "special circumstances [making] innocent avoidance of eye contact improbable." Nicacio v. United States, 797 F.2d 700, 704 (9th Cir. 1985). Compare Hernandez-Alvarado, slip op. at 14418 (suspect looked toward agents then quickly turned away and directed attention to the road) with United States v. Vasquez-Cazares, 563 F.2d 1329, 1330 (9th Cir. 1977) (driver avoided eye contact with agent in marked patrol car directly in driver's line of vision).

Appellant's nervous behavior in avoiding eye contact, sitting stiffly and driving unusually slowly and deliberately for fifteen kilometers while being followed by the marked patrol car, his continued avoidance of eye contact in the unusual circumstances described, considered in connection with the vehicle registration that did not correspond to the identity of the driver, together gave rise to reasonable suspicion justifying the stop of defendant's vehicle.

AFFIRMED.

HARRY PREGERSON, Circuit Judge, dissenting:

I dissent from the majority's decision in this case because I do not believe that founded suspicion existed to justify the investigatory stop of the car driven by the appellant, Jose Ramirez-Morando.

In United States v. Hernandez-Alvarado, No. 88-1265, slip op. 14415, 14425 (9th Cir. Dec. 14, 1989), we found that several factors relied on by the officers in their decision to stop the defendant's car--including avoidance of eye contact and reduction in speed from 65 to 55 m.p.h.--were insufficient to create the founded suspicion necessary to justify the investigatory detention.

In Hernandez-Alvarado, we noted that "avoidance of eye contact has been deemed an inappropriate factor to consider unless 'special circumstances [ ] make innocent avoidance of eye contact improbable.' " Id. at 14425 n. 6 (quoting Nicacio v. United States I.N.S., 797 F.2d 700, 704 (9th Cir. 1986)). We found that the fact that Hernandez-Alvarado was driving "preclude [d] the presence of any such circumstances," id., and concluded that any alleged nervousness displayed by him and his two passengers by "silently staring ahead when the DEA agents approached" was insufficient to create reasonable suspicion. Id. at 14425; see also id. at 14427-28 (Alarcon, Circuit Judge, concurring) ("I fail to see how compliance with an elementary rule of highway safety, i.e., keeping your eyes on the traffic ahead, can demonstrate reasonable suspicion of on-going criminal activity...."). The reasoning and conclusion in Hernandez Alvarado apply equally to the present case. Appellant Ramirez-Morando was also driving the car and his looking straight ahead rather than at the police car was insufficient to create reasonable suspicion to stop his car.

Another factor on which the border patrol agents in Hernandez-Alvarado based their investigatory stop was the defendant's reduction in speed from 65 to 55 m.p.h. in a 65 m.p.h. zone upon the approach of their patrol car. We found that this deceleration did not create reasonable suspicion because "many law-abiding motorists ... reduce their speed on the freeway when being followed by a law enforcement vehicle." Hernandez-Alvarado, slip op. 14415 at 14425. Similarly, in the circumstances of the present case, Ramirez-Morando's decelerations to 50 m.p.h. in a 65 m.p.h. zone were normal responses to the presence of a police car and should not have been used as a factor in determining whether the agents were justified in stopping his car.

In addition, the fact that the car was registered to a person whose surname was not clearly Hispanic certainly is not enough, standing alone, to justify the detention. See United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir. 1985) (suspicion that driver was not registered owner of vehicle was just one of several factors upon which we based our holding that officers had founded suspicion for investigatory stop).

For these reasons, I would hold that under "the totality of the circumstances," United States. v. Cortez, 449 U.S. 411, 417 (1981), the agents in this case were not justified in stopping Ramirez-Morando's car.