Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

No. 89-50660.

United States Court of Appeals, Ninth Circuit.

Before REINHARDT and LEAVY, Circuit Judges, and SAMUEL P. KING, District Judge^* .

MEMORANDUM^** 

Petitioner Nicholas Herrera-Figueroa was convicted of possessing a controlled substance with intent to distribute. He appeals the district court's denial of his motion to suppress evidence, as well as "errors" that allegedly occurred in connection with his sentencing. We will be issuing a separate opinion on the sentencing questions shortly. In this memorandum disposition, we affirm the denial of petitioner's motion to suppress evidence.

Supervisory Border Patrol Agent Searle found approximately 200 pounds of marijuana in the trunk of petitioner's car after stopping and searching the vehicle. Searle testified that he stopped and searched petitioner's car for the following reasons: (1) the international border was nearby and the area was known for alien smuggling; (2) petitioner was virtually the only person on the highway who stared straight ahead and completely avoided eye contact with the patrol unit; (3) petitioner's car wandered in the right-hand lane, which indicated to Searle that petitioner was attempting to spot Searle in the rear-view mirror; (4) petitioner reduced his speed from 65 m.p.h. to 45 m.p.h. after Searle had followed him for some distance; (5) petitioner drove a car with a large rear seat and large trunk; (6) Searle observed the back end of petitioner's car sink down on a bridge as it crossed to a different level and type of pavement, which made Searle suspect that petitioner's car was heavily loaded; and (7) Searle saw petitioner roll down his window on a cold, windy day, which made Searle suspect that petitioner might be trying to rid his car of odors.

Roving Border Patrol agents may make an investigatory stop only if they have reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975). We hold that reasonable suspicion existed in this case. Although we held in United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir. 1989), that factors similar to many of those present here were insufficient to prove reasonable suspicion, one additional factor is present that weighs heavily in favor of reaching the opposite result in this case. Agent Searle testified at the suppression hearing and at trial that the trunk of petitioner's car sagged noticeably as the car crossed onto a different type of pavement. Searle testified that this sagging indicated that the car was heavily loaded, and that the load was inconsistent with only one person being in the car.

We have stated that the fact of a vehicle's trunk appearing to be heavily loaded can "legitimately be used" as a significant factor in evaluating whether sufficient grounds exist for a stop. United States v. Robert L., 874 F.2d 701, 705 (9th Cir. 1989). In this case, under all of the circumstances, that factor, when combined with the others present, is sufficient to provide founded suspicion.

AFFIRMED.