Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Carlos Angulo-Cardenas appeals his conviction, following a conditional guilty plea, on one count of possession with intent to distribute approximately 42 pounds of marijuana in violation of 21 U.S.C. § 841(a) (1). Angulo-Cardenas contends that the district court erred by denying his motion to suppress evidence because the officer who stopped his vehicle lacked a founded suspicion of criminal conduct. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review the existence of founded suspicion de novo. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989); United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988).

A police officer may not stop a vehicle even for the limited purpose of questioning its occupants unless the officer has a founded suspicion of criminal conduct. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). Founded suspicion should be based on the totality of the circumstances and must exist at the time the officer initiates the stop. United States v. Sokolow, 490 U.S. 1, 8 (1989); Thomas, 844 F.2d at 681; Hernandez-Alvarado, 891 F.2d at 1416. Founded suspicion exists when an officer is aware of specific articulable facts that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime. United States v.Cortez, 449 U.S. 411, 416-18 (1981); United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989). Erratic driving or obvious attempts to evade officers can support a finding of founded suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975); United States v. Rocha-Lopez, 527 F.2d 476, 478 (9th Cir. 1975).

Here, Border Patrol Agent Victor Sauceda observed Angulo-Cardenas driving a large older model vehicle of a type known by Agent Sauceda to be commonly used for drug and alien smuggling. When Agent Sauceda shined the headlights of his parked Border Patrol vehicle into Angulo-Cardenas' vehicle as it drove by, Angulo-Cardenas immediately assumed a rigid posture, grasped the steering wheel with both hands and did not look in the direction of the Border Patrol vehicle. Agent Sauceda also noticed that Angulo-Cardenas' vehicle's engine was revving at a high speed and that it suddenly decreased speed as it passed by the Border Patrol vehicle. After passing the Border Patrol vehicle, Angulo-Cardenas braked and then swerved from the slow lane to the fast lane and back again. Based on his observations to that point, Agent Sauceda decided to follow Angulo-Cardenas' vehicle. Angulo-Cardenas continued to drive erratically, swerving from side to side for three miles while apparently trying to monitor the movements of the Border Patrol vehicle following him. Agent Sauceda also observed the passenger in Angulo-Cardenas' vehicle continuously moving, apparently attempting to reach for something on the floorboard or hide something within the vehicle. Agent Sauceda stopped Angulo-Cardenas' vehicle five miles from the border in an area notorious for drug and alien smuggling. Together, these factors were sufficient to give Agent Sauceda a founded suspicion to initiate the stop of Angulo-Cardenas' vehicle.

Thus, the district court properly denied Angulo-Cardenas' motion to suppress the marijuana. See Thomas, 844 F.2d at 682-3; United States v. Fouche, 776 F.2d 1398, 1403 (9th Cir. 1985); see also Brignoni-Ponce, 422 U.S. at 885.

AFFIRMED.