Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

UNITED STATES of America, Plaintiff/Appellee,v.Manuel CHAVEZ-REYES, Defendant/Appellant.

No. 90-10184.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 13, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and WALLACE, NELSON, Circuit Judges.

MEMORANDUM** 

The issue in this appeal is whether founded suspicion existed to justify the investigatory stop of a vehicle. We find that it did not and therefore reverse.

In the final analysis, the district court based its denial of defendant's motion to suppress on three factors: the rapid deceleration from 65 to 50 miles per hour when the police pulled up behind him; his quick glance at the marked Border Patrol car when it was beside the truck followed by his refusal to look back; and defendant's nervous demeanor.

Under governing case law, these are simply not sufficient to establish reasonable suspicion. A quasi-identical fidgeting, reduction of speed and avoidance of eye contact occurred in U.S. v. Hernandez-Alvarado, 891 F.2d 1414, 1418, 1419 n. 6 (9th Cir. 1989), and we found them inadequate.1 

As for the so-called unusual aspect of the vehicle--which the trial judge himself apparently disregarded--or the alleged "tip information" regarding flatbed trucks, they fail to rise to the level of particularized suspicion required under the law.

The government's failure to distinguish Hernandez-Alvarado and to convince us to reach a different result is readily explained: it could not and therefore we do not. Accordingly, the judgment of the district court is REVERSED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 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 Ninth Circuit Rule 36-3

 1

In particular, we wrote: "In fact, avoidance of eye contact has been deemed an inappropriate factor to consider unless 'special circumstances [ ] make innocent avoidance of eye contact improbable.' ... Here, the fact that [defendant] was driving precludes the presence of any such circumstances." Id. at 1419 n. 6 (citation omitted)

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