Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^** 

Francisco Gonzalez-Aguilar appeals his conviction, following a jury trial, for possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (D). The district court sentenced Gonzalez-Aguilar to three years imprisonment and two years supervised release and imposed a special assessment of $50.00. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

Gonzalez-Aguilar contends the district court erred by denying his motion to suppress evidence seized following border patrol agents' stop of the car his wife Della Rose Gonzalez was driving. Gonzalez-Aguilar contends the agents' stop of the car, in which he was a passenger, was not justified by founded suspicion of criminal activity.

At the evidentiary hearing on the motion to suppress, Agent David Gutierrez testified Gonzalez's car speeded past Gutierriez's patrol car, then slowed. While Gutierrez and his partner followed, Gonzalez's car swerved several times and varied its speed. Gutierrez testified the car, with its large back seat and trunk, resembled cars often used for illegal activity. He saw finger marks in the dust on the trunk, and the car was registered in the Franklin Street area of Nogales, Arizona, a border area known for illegal activity. Gutierrez also testified he had received a report of a sensor alert at the border approximately 40 minutes before the stop, a time consistent with the location of Gonzalez's car at the time of the stop.

We review de novo the district court's determination that founded suspicion justified the stop. United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988). We review for clear error the findings of fact on which the district court based its determination. United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987).

Gonzalez-Aguilar contends the district court clearly erred by finding the car swayed drastically, "drastically slowed down", and "swerved numerous times across the road". These findings are consistent with Gutierrez's testimony, and we therefore affirm them. See Kerr, 817 F.2d at 1386.

Gonzalez-Aguilar also contends the district court clearly erred by finding the car came "from an area well known for drug activity" because, as Gutierrez admitted during his testimony, registration information he receives from radio operators is sometimes outdated. In fact, the district court found: "When the car registration was checked it was found to come from an area well known for drug activity." This finding is consistent with Gutierrez's testimony, and we therefore affirm it. See Kerr, 817 F.2d at 1386.

Gonzalez-Aguilar further contends the district court clearly erred by finding the car came from an area where there had been sensor hits because Gutierrez admitted he did not know where the car had entered the road. The district court found there had been " [s]ensor activity in the Franklin area, 30 minutes prior to the stop", and "sensor activity from the area in which the car came from". In other words, the district court apparently found there had been sensor activity in the area where the car was registered. Again, this finding is consistent with Gutierrez's testimony, and we therefore affirm it. See Kerr, 817 F.2d at 1386.

"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." United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989) (citing United States v. Cortez, 449 U.S. 411, 416-18 (1981)). The officer must consider the totality of the circumstances. Id. (quoting United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989) (quoting Cortez, 449 U.S. at 418)).

Gonzalez-Aguilar argues founded suspicion did not justify the stop in this case because none of the facts available to Gutierrez and his partner is entitled to much weight, and each fact is subject to innocent interpretation. Gonzalez-Aguilar argues the car's swerving was minimal and did not violate traffic laws. See United States v. Robert L., 874 F.2d 701, 703-04 (9th Cir. 1989). The dust on the trunk could have come from the dirt roads and ranches in the area, and the registration information could have been outdated. Many cars have large back seats and trunks. See Robert L., 874 F.2d at 704-05. Also, an animal or any other type of traffic could have caused the sensor hit. Nevertheless, law enforcement officers need not rule out the possibility of innocent behavior before making an investigatory stop. See Sokolow, 109 S. Ct. at 1586; United States v. Alvarez, No. 88-5304, slip op. 2917, 2926 (9th Cir. March 20, 1990); United States v. Malone, 886 F.2d 1162, 1165 (9th Cir. 1989).

We find the totality of the circumstances, including the agents' reasonable inferences, gave rise to reasonable suspicion that Gonzalez and Gonzalez-Aguilar were committing a criminal act. See Sokolow, 109 S. Ct. at 1585-86; Cortez, 449 U.S. at 417-18. We therefore affirm the district court's denial of the suppression motion.

Although Gonzalez-Aguilar did not raise this issue in his appeal, we have held that the special assessment provisions of 18 U.S.C. § 3013 violate the origination clause of the Constitution, article I, Sec. 7. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). Therefore, we reverse the special assessment of $50.00 and remand to the district court with instructions to vacate it. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir.), cert. denied, 110 S. Ct. 195 (1989).

AFFIRMED in part and REVERSED and REMANDED in part.