Unpublished Disposition, 930 F.2d 920 (9th Cir. 1989)

MEMORANDUM^* 

Jose Luis De Leon appeals his conviction for possession with intent to distribute a quantity of marijuana under 21 U.S.C. § 841(a) (1). He was convicted at a court trial based on stipulated facts. De Leon contends that the trial court erred in denying his motion to suppress evidence. He based his motion to suppress on these grounds: (1) the stop of his van was without founded suspicion and thus was illegal, (2) the warrant to search his home and the underlying affidavit were tainted by information obtained through the alleged illegal stop and search of his van and (3) the affidavit in support of the warrant to search his home contained material omissions which entitled him to an evidentiary hearing.

Whether there was a founded suspicion to justify an investigatory stop is a mixed question of law and fact which we review de novo. United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988). We conclude that there was insufficient evidence to support a conclusion that a founded suspicion existed on Saturday, May 13, 1989, prior to the stop of De Leon's van by law enforcement personnel.

The government acknowledged at oral argument that the outcome of this appeal hinges on the crucial question whether on May 13, 1989, Agent Welsh possessed sufficient evidence to support a founded suspicion that illegal aliens were in the van when De Leon drove away from the staging area close to the U.S.-Mexico border. The government--which has the burden of proof on this question--argues that Agent Welsh's opinion that illegal aliens were in the van is sufficient to establish a founded suspicion.

We disagree. The government failed to meet its burden of establishing a founded suspicion. There was no direct evidence that Agent Welsh actually saw suspected illegal aliens aboard De Leon's van. Moreover, there was no circumstantial evidence to justify a founded suspicion that illegal aliens were inside De Leon's van. There was no evidence that De Leon's van appeared overloaded, nor was there any evidence that De Leon drove his van erratically. In addition, the fact that Agent Welsh saw De Leon talking to purported illegal aliens near the border is insufficient to raise a founded suspicion that they later boarded the van.

In concluding that Agent Welsh did not have a founded suspicion, we note that on three earlier occasions when he observed the van, he never checked its license number to see if it or its owner had ever been involved in illegal activities. In fact, Welsh did not know anything at all about De Leon that would have led him to suspect that De Leon was engaged in illegal alien smuggling.

Because there was no credible evidence to support a founded suspicion that illegal aliens were aboard the van, nor any other evidence of De Leon's involvement in illegal alien smuggling, we find that the government failed to sustain its burden that there was a founded suspicion to stop De Leon's van.

We therefore conclude that the district court erred in denying De Leon's motion to suppress evidence. The other claims hinge on our finding of no founded suspicion and thus, we need not address them.

REVERSED and REMANDED for further proceedings consistent with the views expressed above.

REINHARDT, Circuit Judge, concurring specially.

I concur in the majority disposition and in Judge Hall's separate concurrence.

CYNTHIA HOLCOMB HALL, Circuit Judge, concurring.

This court faces the question whether Agent Dennis Welsh properly initiated an investigatory stop to discover whether De Leon was engaged in smuggling activities. We have previously had occasion to articulate the standards by which the government must abide:

An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. The Ninth Circuit has termed the requisite level of cause a "reasonable" or "founded" suspicion of criminal activity. In evaluating the legality of the investigatory stop, the totality of the circumstances is taken into account. The totality of circumstances should include the modes of operation of certain kinds of lawbreakers, taking into account inferences and deductions that may be apparent to trained law enforcement officers.

United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989).¹ 

There is not any question that Agent Welsh knew a number of facts relevant to the stop of De Leon. First, the street on which De Leon was observed, Monument Road, is very near the United States' border with Mexico. Monument Road is approximately 40 yards from the Mexican border and is as a consequence "notorious" for smuggling activities involving both narcotics and illegal aliens. Second, De Leon was driving a van, a vehicle capable of transporting a relatively large number of aliens. Third, Welsh had frequently seen this van in the area. Specifically, Welsh had on prior occasions seen this van parked next to one of the three houses in the area. Also on prior occasions Welsh had seen the driver of the van, who may have been De Leon though Welsh could not be sure, walk from the house near which the van was parked to another house on the street and converse with individuals who Welsh suspected might be illegal aliens. Welsh noticed the van was subsequently moved next to one of the neighboring houses, and that shortly thereafter the van was driven off.

However, a number of factors weigh against a finding of reasonable suspicion. Welsh never saw any suspected illegal aliens enter the van, whether on the day the van was stopped or on prior occasions. Welsh never saw "evasive" driving, whether on the day the van was stopped or on prior occasions. Welsh had not been informed by any individual that the van was involved in smuggling activities. Cf. Ramirez-Sandoval, 872 F.2d at 1395 (reasonable suspicion when stop based, in part, on information provided by bystanders). And Welsh was unaware of the fact that the house next to which he had seen the van was De Leon's; De Leon had simply parked his van next to his house.

The facts of this case do not establish reasonable suspicion. The government claims that there was reasonable suspicion to stop De Leon simply because his van had been seen in the vicinity on a number of prior occasions, and an unidentified driver of the van had once before been seen conversing with people in the neighborhood, albiet somewhat suspicious people. To accept the government's position would essentially be to say that police officers have reasonable suspicion to stop individuals who live near the border whenever the officers get a "bad feeling." Yet it is clear that more than a "bad feeling" is required, even if the feeling is experienced by a seasoned officer. See Ramirez-Sandoval, 872 F.2d at 1395. As this court said in Morrison: "Proximity to the border and prior illegal activity in the area are relevant factors, but they do not justify a stop absent other indicia of illegal activity." 546 F.2d at 320 (citations omitted). I therefore concur.