Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 264 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Juan GUILLEN-SAINZ, Defendant-Appellant.

No. 89-10308.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 18, 1990.1 Decided Sept. 20, 1990.

Before GOODWIN, Chief Judge, and HUG and BEEZER, Circuit Judges.


MEMORANDUM** 

Juan Guillen-Sainz appeals his conviction, following a conditional guilty plea, for possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii). Guillen-Sainz contends that the district court erred by denying his motion to suppress evidence seized following an allegedly illegal stop of Guillen-Sainz by an agent of the United States Border Patrol. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo whether there was a 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 to make a brief investigatory stop of a vehicle in a border area exists where an officer is "aware of specific articulable facts, [taken] together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.

Sanchez-Vargas, 878 F.2d at 1166 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)). "In evaluating the validity of a stop ..., [this court] must consider 'the totality of the circumstances--the whole picture.' " United States v. Sokolow, 109 S. Ct. 1581, 1585 (1989) (quoting United States v. Cortez, 449 U.S. 411 (1981)); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1419 (9th Cir. 1989). There is no limit to the number of factors which an officer may take into account in determining whether there is founded suspicion to make an investigatory stop of a vehicle. Brignoni-Ponce, 422 U.S. at 884.1 A Border Patrol officer may draw upon his professional experience when evaluating the facts prior to initiating the investigatory stop. Sanchez-Vargas, 878 F.2d at 1166 (citations omitted). The facts must, therefore, be interpreted in the light of a trained officer's experience. United States v. Magana, 797 F.2d 777, 780 (9th Cir. 1986) (reasonable suspicion based in part on type and appearance of vehicle); cf. Hernandez-Alvarado, 891 F.2d at 1416 (no reasonable suspicion despite nervous demeanor of vehicle's occupants, rapid reduction in speed, presence of two-way antenna, and type and registration of vehicle).

Here, Agent Stout's suspicions were founded primarily on the following factors present before he stopped Guillen-Sainz: (1) that Guillen-Sainz appeared to have pulled off the freeway to avoid the officer; (2) that Guillen-Sainz entered a gas station but did not purchase anything; and (3) that Guillen-Sainz appeared to turn his vehicle away from Stout's marked vehicle on leaving the gas station but, when a truck blocked that option, changed direction and instead headed past Agent Stout's vehicle.2 

When asked to state the basis for his investigatory stop of Guillen-Sainz' vehicle, Agent Stout cited only the three factors noted above. Earlier, however, Agent Stout testified that he initially became interested in Guillen-Sainz because the vehicle Guillen-Sainz was driving resembled one which he had seen heading in the opposite direction on that same road two weeks earlier. Additionally, Agent Stout stated that he suspected that the driver was an I-186 alien, which is an alien with a limited permit to travel only within a restricted area up to 25 miles from the border,3  because that type of truck is frequently driven by I-186 aliens and because Guillen-Sainz appeared to be nervous and fidgeted with his mouth when the officer pulled abreast of him on the highway.

Thus, there were sufficient facts for the officer, based on his experience, to make an investigatory stop: Guillen-Sainz' driving was evasive, see Medina-Gasca, 739 F.2d at 1453; the officer knew that that type of vehicle is frequently driven by I-186 aliens and that it was unusual for only one person to be riding in a truck of that type, see Magana, 797 F.2d at 780-782; and Guillen-Sainz exhibited nervous demeanor, see Nikzad, 739 F.2d at 1433.

Therefore, the district court did not err in denying Guillen-Sainz' motion to suppress evidence seized following the investigatory stop by the Border Patrol officer. See Magana, 797 F.2d at 780-782; Nikzad, 739 F.2d at 1433; Medina-Gasca, 739 F.2d at 1453.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3

 1

Relevant factors in determining founded suspicion include, but are not limited to, (1) the characteristics of the area in which the vehicle is encountered, such as proximity to the border, the usual patterns of traffic, and previous experience with alien traffic; (2) information about recent illegal border crossings: (3) the driver's behavior, such as erratic driving or obvious attempts to evade officers; (4) the characteristics of the vehicle itself, such as vehicle type, apparent size of the load, and number of passengers; and (5) whether, in the officer's experience, the appearance of the vehicle's occupants indicates that they live in Mexico. Brignoni-Ponce, 422 U.S. at 884-885; see also United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir. 1984) (reasonable suspicion based in part on evasive driving); United States v. Nikzad, 739 F.2d 1431, 1433 (nervous behavior provided sufficient grounds for investigatory stop of person in airport)

 2

Although Guillen-Sainz contested Agent Stout's account of the events leading up to the stop, "credibility determinations ... are matters left to the trier of fact." United States v. Vasquez, 858 F.2d 1387, 1391 (citation omitted)

 3

Guillen-Sainz was initially spotted by Agent Stout approximately 60 to 70 miles from the United States-Mexico border, outside this restricted area