Unpublished Disposition, 931 F.2d 898 (9th Cir. 1990)

MEMORANDUM^* 

Enrique Lopez appeals his conviction for possession with intent to distribute more than 50 but less than 100 kilograms of marijuana in violation of 21 U.S.C. §§ 846(a) (1) and 841(b) (1) (C) (1). Lopez entered a conditional plea of guilty pursuant to Fed. R. Crim. P. 11(a) (2), specifically reserving his right to appeal the district court's determination that reasonable suspicion existed to justify an investigatory stop of his vehicle. He now brings that appeal. We reverse and remand.

FACTS AND PROCEDURAL BACKGROUND

At approximately 6:40-6:45 a.m. on March 7, 1990, U.S. Border Patrol Agent Larry Jerde was in a marked car heading west on Highway 82 on his way to work in Sonoita. Highway 82 is a well-paved road that connects various towns in the area and is used by locals, tourists and truck drivers on a regular basis. While driving at approximately 50 m.p.h. down the highway, Agent Jerde's attention was drawn to a four-door white Chevrolet sedan coming toward him. He thought the car seemed out-of-place for the area. In the brief time he had to observe the Chevrolet, he noted that its two occupants were Hispanic males. When the Chevrolet passed his car going in the opposite direction he observed its occupants "stiffen" as if they did not want to look at him. The Chevrolet was neither speeding nor going too slow nor in any other way violating traffic laws or obstructing the flow of traffic.

Agent Jerde turned his car around to follow the Chevrolet. He also called for a registration check. As he was following it, the Chevrolet turned off the highway into a private driveway. It came to a complete stop behind a house about fifty yards from the highway. The occupants remained seated in the car. Agent Jerde stopped his car some 200 yards down the road and got out. Before he could raise his binoculars to his eyes to watch the house where the Chevrolet had stopped, the Chevrolet left the driveway and headed back down the highway in the opposite direction from its original course. Agent Jerde testified he had a "feeling" the individuals in the car were attempting to avoid him. He got back in his car and followed the Chevrolet. He then received the results of the registration check; although the Chevrolet had Arizona license plates, it was registered to a California leasing company. Agent Jerde thought it was suspicious that the car was traveling in the opposite direction from California. He stopped in traffic behind the Chevrolet and observed the occupants speaking, apparently without turning to face one another.

When another agent arrived on the scene, Agent Jerde activated his lights and stopped the Chevrolet. After identifying himself as a Border Patrol agent, Agent Jerde asked the occupants their identities and nationalities. The driver identified himself as Lopez. Lopez and his companion admitted they were from Mexico and had no immigration documents. Further inquiry revealed that the two had entered the United States illegally the previous evening. Agent Jerde then arrested both Lopez and his companion. Agent Jerde asked who owned the car and both Lopez and his companion said they did not know. Agent Jerde then took the keys from the ignition of the car and opened the trunk. In the trunk he discovered bundles of marijuana.

STANDARD OF REVIEW

Whether there was sufficient founded suspicion to justify an investigatory stop is a mixed question of law and fact requiring de novo appellate review. United States v. Alvarez, 899 F.2d 833, 836 (9th Cir. 1990), cert. denied, 111 S. Ct. 671 (1991); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989); United States v. Thomas, 863 F.2d 622, 625 (9th Cir. 1988).

DISCUSSION

"An officer may make an investigatory stop if he is aware of specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person detained is engaged in criminal activity." Hernandez-Alvarado, 891 F.2d at 1416 (citing United States v. Cortez, 449 U.S. 411, 416-18 (1981)); see also Terry v. Ohio, 392 U.S. 1, 21 (1968). In reviewing the action of the officer, "the totality of the circumstances--the whole picture--must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, 449 U.S. at 417-18 (citing Brown v. Texas, 443 U.S. 47, 51 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)). Although the facts and circumstances surrounding the investigatory stop should be interpreted in light of the experience of the officer, mere hunches or subjective impressions are not enough. See Terry, 392 U.S. at 22 (inchoate suspicions or hunches not enough); United States v. Kerr, 817 F.2d 1384, 1387 (9th Cir. 1987) (investigatory stop based on hunches alone violative of fourth amendment); United States v. Post, 607 F.2d 847, 850 (9th Cir. 1979) (founded suspicion must arise from specific facts not inchoate hunches). "Permissible deductions or rational inferences must be grounded in objective facts and be capable of rational explanation; 'while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop.' " Hernandez-Alvarado, 891 F.2d at 1416 (quoting Nicacio v. United States, 797 F.2d 700, 705 (9th Cir. 1986)).

In the present case, Agent Jerde's suspicions were founded on the following facts: (1) Agent Jerde did not recognize the Chevrolet; (2) Lopez and his companion were Hispanic; (3) Lopez and his companion "stiffened" and avoided looking at Agent Jerde when they first passed him going in the opposite direction; (4) the Chevrolet turned off the highway into a private driveway and stopped there briefly before returning to the highway to drive in the opposite direction; (5) the Chevrolet was registered to a California leasing company but had Arizona license plates and was traveling in the opposite direction from California; and (6) Agent Jerde observed the two occupants of the Chevrolet conversing, apparently without turning their heads to face one another.

Without losing sight of our obligation to consider the totality of the circumstances, we conclude that these facts, considered in the aggregate, together with permissible deductions and rational inferences which we may draw from them, are insufficient to supply the objectively reasonable suspicion necessary to render the investigatory stop of the Chevrolet permissible under the fourth amendment. "While they may allow certain inferences to be drawn, they describe too many individuals [and too many innocent events] to create a reasonable suspicion that this particular defendant is engaged in criminal activity." Hernandez-Alvarado, 891 F.2d at 1418-19.

The fact that Agent Jerde did not recognize the Chevrolet is not an indication that its occupants were engaged in or about to engage in criminal activity. The Sonoita area has approximately 1500 to 2000 residents and Agent Jerde admitted he did not know all the local vehicles. Furthermore, Highway 82 is a paved road that connects various towns in the area and is used by residents, tourists and commercial vehicles on a regular basis. Additionally, Agent Jerde testified he had worked the 6:00 a.m. shift in Sonoita for two years before this incident and was familiar with the traffic he would see on his way to work every morning. On this morning, however, Agent Jerde was on his way to work at 6:40-6:45 a.m., and thus his familiarity with earlier traffic patterns was of little significance.

Similarly, the lack of eye contact is certainly not dispositive given that this Circuit has stated that " [t]he failure of the occupants [of a vehicle] to look at agents adds little to [a] ... case in light of the questionable value of the factor generally...." United States v. Munoz, 604 F.2d 1160, 1161 (9th Cir. 1979); see also United States v. Mallides, 473 F.2d 859, 861 (9th Cir. 1973) (not suspicious simply not to look at a passing police car); see also United States v. Lamas, 608 F.2d 547, 549-50 (5th Cir. 1979) (avoiding eye contact cannot weigh in balance whatsoever); United States v. Lopez, 564 F.2d 710, 712 (5th Cir. 1977) (failure to make eye contact may be rule rather than exception).

This case may be handily distinguished from those cases in which eye contact has been listed as supporting reasonable suspicion, as, in those cases, courts relied on the fact that a suspect made eye contact in some suspicious manner rather than simply avoiding eye contact as was the case here. See, e.g., United States v. Nikzad, 739 F.2d 1431, 1433 (9th Cir. 1984) (suspect's "glances and stares at the officers, nervous shuffling and evasion of police stares, provided grounds for a brief Terry-type investigative stop."). We "fail to see how compliance with an elementary rule of highway safety, i.e., keeping your eyes on the traffic ahead, can demonstrate reasonable suspicion of ongoing criminal activity, especially at 55 miles per hour." Hernandez-Alvarado, 881 F.2d at 1420 (Alarcon, J. concurring).

Further, the fact that the Chevrolet turned into a private driveway and its occupants remained in the car before pulling back onto the highway and then proceeding in the opposite direction is not inherently suspicious. See United States v. Ogilvie, 527 F.2d 330, 331-32 (9th Cir. 1975) (driver's action in turning off the highway and reversing direction immediately prior to a Border Patrol operated checkpoint not in itself suspicious where "there [was] ... no evidence that [the driver] ... drove fast, as if running away, disobeyed any traffic laws, or otherwise drove in an unusual or erratic manner.... [Rather, she] did what she had a legal right to do, reverse the direction of her travel, and did it in the only legal way that she could on that stretch of highway, an action that is not uncommon on a freeway.").

The fact that the Chevrolet came to a complete stop temporarily behind the house before returning to the roadway is significant, but insufficient to suggest criminal conduct was afoot, even when considered in combination with the other circumstances. The stop was too brief. Agent Jerde only had time to drive 200 yards down the road and step out of his car before the Chevrolet pulled back onto the highway. There is no indication that the occupants of the Chevrolet attempted to hide from Agent Jerde. Moreover, the brief stop off the highway and reversal of direction was not inconsistent behavior for the driver of a car which Agent Jerde thought was strange to the area.

The fact that the car was registered to a California leasing company yet bore Arizona license plates and was traveling away from California is not a suspicious circumstance. Such a registration is not illegal nor is it particularly odd. Further, many cars travel in the opposite direction from their registration states for many innocent reasons--vacations, business trips, visiting in-laws, to name a few.

Finally, Agent Jerde's testimony regarding why he believed the occupants of the car were conversing without turning their heads toward one another is somewhat unclear and, as such, must be discounted. Agent Jerde offered the following testimony: "I thought they were [conversing]. I could see their lips moving, or the sides of their head [sic] moving as if they were talking; maybe they were chewing gum, but I couldn't swear to it." Reporter's Transcript of Proceedings, May 16, 1990, at 37 (hearing on pending motions). Even assuming the driver was talking to the passenger without turning his head, however, there would seem to be no reason to attribute malicious behavior to this conduct. It indicates nothing more than a desire to observe safe driving procedures. See Hernandez-Alvarado, 881 F.2d at 1420 (Alarcon, J. concurring). Nor is it unusual for a front-seat passenger to be attentive to the road ahead.

We realize " [t]he test is not whether the conduct under question is consistent with innocent behavior ... [and] law enforcement officers do not have to rule out the possibility of innocent behavior." United States v. Sutton, 794 F.2d 1415, 1427 (9th Cir. 1986) (citing United States v. Holland, 510 F.2d 453, 455 (9th Cir.), cert. denied, 422 U.S. 1010 (1975)); see also Cortez, 449 U.S. at 419 (founded suspicion can be based on inference drawn from innocent appearing facts by experienced officers). However, an investigatory stop may not be made solely on the basis of the innocent facts and inchoate hunches and "feelings" which the record discloses in this case.

The district court's order denying the motion to suppress is reversed, and this cause is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

NOONAN, Circuit Judge, dissenting:

The standards set out by the court are unexceptionable. I disagree with their application. The circumstances are analyzed separately instead of convergently. Together, the facts known to the officer amount to an objective, articulable reason for the stop. I respectfully dissent.