United States v. Quintana-Grijalva

FILED
United States Court of Appeals
Tenth Circuit

June 15, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 08-2207
(D. N.M.)
JESUS GERARDO QUINTANA- (D.Ct. No. 2:07-CR-02510-RB-1)
GRIJALVA,

Defendant - Appellant.
____________________________

ORDER AND JUDGMENT *

Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously to honor the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).

Therefore, this case is ordered submitted without oral argument.

Jesus Gerardo Quintana-Grijalva was apprehended in southern New

Mexico, approximately thirty miles from the international border, after fleeing

*
This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation --
(unpublished). 10th Cir. R. 32.1(A).
from his marijuana-laden truck on foot. The district court denied his motion to

suppress, concluding he lacked standing to challenge the seizure of marijuana

from his vehicle because he voluntarily abandoned it. Following the court’s

ruling, Quintana-Grijalva entered into a plea agreement with the government,

reserving his right to appeal from the denial of his motion to suppress. He now

appeals; we affirm.

I. BACKGROUND

On September 22, 2007, a white Ford F-150 extended cab pickup truck

crossed illegally into the United States by cutting through a fence, but escaped

back to Mexico when approached by United States Border Patrol (USBP) agents.

The following day, USBP agent Adrian Miranda 1 and an agent trainee were

advised a portion of fence had been cut just north of the border near San Luis

Pass, a vehicle intrusion had apparently occurred, and the agents should look out

for the illegally-crossing vehicle. They were also advised of the events the day

before. After receiving this information, Miranda and the agent trainee began

their patrol in a white, unmarked Dodge Durango equipped with a canine in a

kennel.

The agents traveled down Perimeter Road, which provides one of the few

northerly routes bypassing Highway 81, the major highway running north from

1
Miranda testified at the suppression hearing that during his approximately seven
years as a USBP agent, he has served exclusively in the Lordsburg, New Mexico area and
has been involved in approximately fifteen apprehensions in that area.

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the Antelope Wells Port of Entry. Perimeter Road is a one-lane dirt road which

sees “[v]ery minimal” traffic. (R. Vol. III at 37.) It is used primarily by a local

rancher and rarely by non-locals. All of the roads in the area, including Perimeter

Road, are notorious for smuggling.

In the early afternoon, Miranda spotted a white Ford F-150 extended cab

pickup truck driving north toward him on Perimeter Road, approximately thirty

miles from the international border. Miranda did not recognize the vehicle. He

surmised the Ford most likely traveled north on Highway 81 before turning onto

Perimeter Road. Miranda pulled over to allow the Ford to pass. Though it is

customary for occupants of vehicles encountering each other in this area to speak

with one another when they pass, the occupants of the Ford did not stop. Instead,

they looked at Miranda and his colleague, turned away, then looked straight

ahead. Neither the driver nor the passenger turned to see how close they were to

the Dodge when they passed. Miranda noticed the driver and passenger appeared

to be Mexican. He also noticed the Ford had an Arizona license plate with a fleet

tag, which indicated it was a rental vehicle. 2 Miranda knew smugglers often

utilize stolen and rental vehicles in order to avoid having their personal vehicles

confiscated. While he testified he had encountered non-local traffic on Perimeter

Road in the past, he could not recall encountering a rental vehicle with Arizona

2
Miranda explained the license plate stated “F-L-T” which usually indicates the
vehicle belongs to a fleet of rental vehicles. (R. Vol. III at 21.)

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plates that was not involved in smuggling.

Miranda executed a U-turn and began following the Ford. For purposes of

officer safety, he requested a registration check on the license plate. He also

requested a 72-hour lane check to ascertain whether it had crossed the border via

a port of entry during the previous 72 hours. The lane check indicated the Ford

had not recently passed through a port of entry. While waiting on the registration

check, Miranda continued to follow the Ford from approximately two or three car

lengths behind. Miranda noticed the driver of the Ford looking out of his side

mirror at Miranda and then turning to speak to the passenger. The Ford slowed

almost to a stop, continued on, and then slowed down again. Miranda did not

attempt to pass. After a couple of minutes, the registration check came back

indicating the Ford was registered with a rental company in Phoenix, Arizona.

Miranda knew Phoenix to be a common smuggling destination.

Miranda activated his emergency equipment in order to conduct an

immigration inspection. The driver accelerated, the truck fish-tailed, and they

turned around to head south. During the process, the Ford hit the berm next to

Miranda’s Dodge, became airborne, and almost hit the Dodge. As Miranda turned

his vehicle around to follow, he notified his supervisor of the Ford’s failure to

yield and requested assistance. Another USBP agent advised Miranda he would

deploy spikes to deflate the tires of the Ford. Miranda disengaged his emergency

equipment, and the Ford slowed down. Miranda continued to follow the Ford

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from a distance of approximately four or five car lengths.

Miranda followed the Ford for five to ten minutes before the Ford came

upon the spikes. As the Ford approached the spikes, the driver attempted to veer

off the road and through a fence. The berm prevented the Ford from hitting the

fence and caused it to slide back down the berm at an angle. It ran over the

spikes with its right rear tire, but continued east toward Highway 81. Another

USBP vehicle was parked at the intersection of Highway 81. Approximately 50

to 100 yards from the intersection, the Ford left the road in a southerly direction

toward Highway 81. Just south of the intersection, it drove through a barbed wire

fence along Highway 81 and ended up on the pavement, approximately 100 yards

away from Miranda’s vehicle. It continued south on Highway 81 for

approximately fifteen minutes. Miranda continued to follow from approximately

five car lengths and witnessed both the driver and the passenger talking on a

radio. Other USBP vehicles were also following the Ford at this point.

As the Ford attempted to enter San Luis Pass; it missed the entrance and

went through the barbed wire fence just south of the location where the cut fence

had been reported the previous day. It continued on for approximately 100 yards

before the entangled barbed wire brought it to a stop. Miranda followed and

observed the driver rocking the Ford in an attempt to free it from the barbed wire.

As Miranda approached in his Dodge, the driver and the passenger jumped out of

the Ford, left the doors to the cab open and ran in opposite directions.

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 Approximately fifty yards east of the Ford, Miranda apprehended the

driver, who identified himself as Quintana-Grijalva. Miranda transferred custody

of Quintana-Grijalva to other USBP agents who transported him, along with the

passenger, to the Lordsburg Border Patrol Station for processing. Miranda

returned to his Dodge, got his canine partner, and had the dog check the Ford.

The dog alerted to the back of it. The USBP agents opened the extended cab

portion of the Ford and observed bundles of a substance under a blanket that

field-tested positive for marijuana. The USBP agents also discovered cell phones,

a two-way radio, and a battery for the radio.

Quintana-Grijalva was indicted with conspiracy to possess with intent to

distribute 100 kilograms and more of marijuana (Count One) and possession with

intent to distribute 100 kilograms and more of marijuana and aiding and abetting

the same (Count Two). 3 He filed a motion to suppress the marijuana discovered

in the truck arguing the stop of his vehicle was not justified at its inception

because it was not based upon reasonable suspicion. 4 The government argued

Quintana-Grijalva lacked standing to challenge the seizure of the marijuana

because he abandoned it when he fled from the truck. The government also

3
The passenger of the vehicle, Oscar Almarez-Lopez, was indicted on these same
charges. He pled guilty to Count Two pursuant to a plea agreement and was sentenced to
60 months imprisonment.
4
Quintana-Grijalva stated he also sought to suppress the statements he made to the
USBP agents after he was arrested as “fruit of the poisonous tree.” (R. Vol. III at 36.) He
offered no argument on this point and indicated to the district court at the hearing that he
did not challenge the admissibility of any statements he made following his arrest.

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argued the stop was supported by reasonable suspicion. The district court held a

hearing at which Miranda testified to the facts recited above.

The court concluded Quintana-Grijalva did not have standing to challenge

the seizure of the marijuana because he “abandoned the Ford and its contents

when he jumped out, left the door open with the marijuana in the extended cab of

the Ford, and fled from agents on foot.” (R. Vol. I at 37.) It determined

Quintana-Grijalva’s flight from the Ford was voluntary because it did not result

from a Fourth Amendment violation. It held, based on the totality of the

circumstances, the agents had reasonable suspicion to believe the occupants of the

Ford were involved in criminal activity.

Following the denial of his motion to suppress, Quintana-Grijalva entered

into a plea agreement with the government pursuant to which he pled guilty to

both counts of the indictment, but reserved his right to appeal the denial of his

motion to suppress. The court sentenced Quintana-Grijalva to 60 months

imprisonment on each count to run concurrently.

II. DISCUSSION

Quintana-Grijalva contends he has standing to challenge the seizure of the

marijuana because he did not abandon his vehicle and, if he did, the abandonment

was not voluntary because it followed a Fourth Amendment violation.

A. Abandonment

“The Fourth Amendment protects people from unreasonable government

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intrusions into their legitimate expectations of privacy. But a warrantless search

and seizure of abandoned property is not unreasonable under the Fourth

Amendment . . . because when individuals voluntarily abandon property, they

forfeit any expectation of privacy in it that they might have had.” United States

v. Austin, 66 F.3d 1115, 1118 (10th Cir. 1995) (quotations and citations omitted).

“The test for abandonment is whether an individual has retained any reasonable

expectation of privacy in the object. Abandonment is akin to the issue of

standing because a defendant lacks standing to complain of an illegal search or

seizure of property which has been abandoned.” United States v. Garzon, 119

F.3d 1446, 1449 (10th Cir. 1997) (quotations and citations omitted). The burden

is on the government to establish abandonment by a preponderance of the

evidence. See United States v. Denny, 441 F.3d 1220, 1226 (10th Cir. 2006). The

inquiry is one of intent and subsumes both a subjective and objective component.

See Garzon, 119 F.3d at 1449.

“Findings of subjective intent are findings of fact, which we review only

under a clearly erroneous standard.” Id. Here, the district court found

“[Quintana-Grijalva] and the passenger intended to abandon the Ford and its

contents when they fled on foot.” (R. Vol. I at 36.) Quintana-Grijalva maintains

“no evidence exists as to [his] actual intent at the time he ran from the Ford.”

(Appellant’s Br. at 15.) He appears to discount the fact that his conduct—the

flight from the truck—is clearly demonstrative of his subjective intent.

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 Moving on to the objective intent, “whether the defendant retained an

objectively reasonable expectation of privacy in the property that society will

recognize is a question of law that we review de novo.” Garzon, 119 F.3d at

1449. Quintana-Grijalva argues under an objective test, the possessions he left in

the Ford—cell phones, a two-way radio and a battery—indicate he intended to

return to the vehicle. That is the extent of his argument. He does not cite legal

authority to support his position. For that reason alone, we need not devote much

time to his argument. See Pignanelli v. Pueblo Sch. Dist. No. 60, 540 F.3d 1213,

1217 (10th Cir. 2008) (deeming argument waived for failure to cite supporting

legal authority or record evidence); MacArthur v. San Juan County, 495 F.3d

1157, 1160-61 (10th Cir. 2007) (“[M]ere conclusory allegations with no citations

to the record or any legal authority for support does not constitute adequate

briefing.”) (quotations omitted).

In any case, whether a defendant harbored a desire to later retrieve an

object allegedly abandoned “is irrelevant to our analysis of the objective

component.” Denny, 441 F.3d at 1227. In Denny, we held the defendant had

abandoned a clear plastic bag which contained cocaine when he removed it from a

larger bag, placed it underneath his seat on a train, and disclaimed ownership of

it. Id. at 1223. Although the defendant “undoubtedly intended to retrieve the bag

once the agent was no longer on his trail,” that fact alone “[did] not dispose of

our inquiry.” Id. at 1227. We explained: “Even where a suspect does not

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subjectively intend to relinquish all ownership interest in an item, such suspect

may nevertheless relinquish his or her reasonable expectation of privacy in the

item.” Id. Because the defendant did not retain a reasonable expectation of

privacy in the clear plastic bag that society was willing to recognize, we reversed

the district court’s grant of the defendant’s motion to suppress.

Similarly here, Quintana-Grijalva did not retain a reasonable expectation of

privacy in the truck or any of its contents when he fled from the truck, leaving the

doors open and the marijuana (and other objects) inside.

B. Voluntariness

“An abandonment must be voluntary . . . .” Austin, 66 F.3d at 1118.

Quintana-Grijalva claims if he did abandon the Ford and its contents, the

abandonment was not voluntary because: (1) he was being pursued by law

enforcement at the time of the abandonment; and (2) the abandonment resulted

from an earlier Fourth Amendment violation. A “police pursuit or investigation

at the time of abandonment of property does not of itself render abandonment

involuntary.” United States v. Ojeda-Ramos, 455 F.3d 1178, 1187 (10th Cir.

2006) (quotations omitted). However, “[a] defendant’s abandonment of property .

. . is not voluntary if it results from a violation of the Fourth Amendment.” Id.

Thus, we consider only whether Quintana-Grijalva’s abandonment resulted from

an earlier Fourth Amendment violation. “The ultimate determination of

reasonableness under the Fourth Amendment is . . . a conclusion of law that we

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review de novo.” United States v. De La Cruz-Tapia, 162 F.3d 1275, 1277 (10th

Cir. 1998) (quotations omitted). The evidence to support that conclusion,

however, must be viewed in the light most favorable to the prevailing party, and

we must accept the district court’s findings of fact unless they are clearly

erroneous. See id. at 1277-78.

An abandonment is involuntary only when preceded by a Fourth

Amendment violation; the abandonment must “result[] from” the violation.

Ojeda-Ramos, 455 F.3d at 1187 (emphasis added). In this instance, Quintana-

Grijalva was not seized before he abandoned the Ford. For there to be a seizure,

the suspect must submit to the officer’s authority. See California v. Hodari D.,

499 U.S. 621, 629 (1991) (holding defendant was not seized when he tossed crack

cocaine from his person while engaged in a foot chase with the police because an

officer’s assertion of authority does not constitute a seizure unless the suspect

actually submits to the authority); United States v. Harris, 313 F.3d 1228, 1235

(10th Cir. 2002) (holding police officer did not seize defendant when he began

asking him for his identification because defendant “did not submit” to the

officer’s authority); Latta v. Keryte, 118 F.3d 693, 700 (10th Cir. 1997) (holding

defendant not seized during unsuccessful pursuit on the interstate because it “did

not cause [him] to submit to the authority or succeed in stopping him”); Bella v.

Chamberlain, 24 F.3d 1251, 1256 (10th Cir. 1994) (holding plaintiff was not

seized when an officer fired three rounds at the helicopter he was piloting because

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the shots “did not cause [the plaintiff] to submit nor did they otherwise succeed in

stopping him”) (footnote omitted). Whether Miranda reasonably suspected

criminal activity when he activated his emergency equipment is irrelevant to the

Fourth Amendment analysis because Quintana-Grijalva did not submit to

Miranda’s authority. As the district court correctly held, Quintana-Grijalva was

not seized until he was apprehended after abandoning the Ford. Because

Quintana-Grijalva’s Fourth Amendment rights were not implicated prior to the

seizure, Quintana-Grijalva’s abandonment could not have “result[ed] from” a

Fourth Amendment violation. See Ojeda-Ramos, 455 F.3d at 1187.

For the sake of completeness, we consider the district court’s determination

that Miranda had a reasonable suspicion of criminal activity when he activated his

emergency equipment. When a border patrol agent conducts a roving border

patrol stop, he must have “reasonable suspicion that criminal activity may be

afoot.” United States v. Gandara-Salinas, 327 F.3d 1127, 1129 (10th Cir. 2003).

“Although an officer’s reliance on a mere hunch is insufficient to justify a stop,

the likelihood of criminal activity need not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the

evidence standard. Border patrol agents may thus stop vehicles if they are aware

of specific articulable facts, together with rational inferences from those facts,

that reasonably warrant suspicion of criminal activity.” Id. (quotations and

citations omitted).

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 The following factors are relevant in determining whether an
immigration stop is supported by reasonable suspicion: (1)
characteristics of the area in which the vehicle is encountered; (2) the
proximity of the area to the border; (3) the usual patterns of traffic
on the particular road; (4) the previous experience of the agent with
alien traffic; (5) information about recent illegal border crossings in
the area; (6) the driver’s behavior, including any obvious attempts to
evade officers; (7) aspects of the vehicle, such as a station wagon
with concealed compartments; and (8) the appearance that the vehicle
is heavily loaded. A law enforcement officer may assess these
factors in light of his experience and specialized training and a court
should accord deference to an officer's ability to distinguish between
innocent and suspicious actions. Guided by these factors, the
ultimate assessment of reasonable suspicion depends on the totality
of the circumstances. In making that determination, a court may not
evaluate and reject each factor in isolation.

Id. at 1129-30 (citations omitted).

The district court concluded “[a] review of the totality of the circumstances

establishes that Agent Miranda had reasonable suspicion to stop the Ford and

detain [Quintana-Grijalva].” (R. Vol. I at 41.) It explained:

Agent Miranda encountered the Ford on a one-lane dirt road in a
sparsely populated area, located approximately thirty miles from the
international border. The Ford was traveling away from the border
area. Agent Miranda noticed the Arizona license plate and the fleet
tag, which indicated the Ford was a rental. Based on his previous
experience with alien traffic, Agent Miranda knew that smugglers
often utilize stolen and rental vehicles in order to avoid having their
personal vehicles confiscated. The registration check confirmed that
the Ford was registered to a rental company in Phoenix, Arizona.

Agent Miranda was familiar with local residents and patterns of
traffic. Agent Miranda knew that, only very rarely, did non-residents
use this very remote road. Agent Miranda recognized neither the
Ford nor its occupants. Although locals customarily stopped to
speak with passing vehicles on Perimeter Road, the Ford did not
stop. In fact, neither the driver nor the passenger turned to see how

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 close they were to the Dodge when they passed by. Agent Miranda
had been advised that a vehicle matching the description of the Ford
had illegally entered the United States from Mexico. The occupants
of the Ford exhibited suspicious behavior. The driver and the
passenger of the Ford looked at the USBP agents, turned away, and
looked straight ahead. As Agent Miranda followed the Ford, the
driver watched Agent Miranda in the side mirror of the Ford. The
driver turned and talked to the passenger, and slowed almost to a
stop and started moving again.

(Id.)

Quintana-Grijalva challenges various factual findings of the district court

and the significance the court placed on those findings. While we will discuss

each of Quintana-Grijalva’s concerns, we are cognizant of the Supreme Court’s

instruction in United States v. Arvizu that Courts of Appeal should consider the

various factors as a whole and should not engage in a “divide-and-conquer

analysis.” 534 U.S. 266, 274 (2002). The Arvizu Court made clear “[a]

determination that reasonable suspicion exists . . . need not rule out the possibility

of innocent conduct.” Id. at 277. With this in mind, we consider Quintana-

Grijalva’s challenges.

First, Quintana-Grijalva claims Miranda “had no reason to believe that the

Ford he saw came from the border that day.” (Appellant’s Br. at 10.) He points

out Miranda encountered the Ford more than 30 miles from the border. Quintana-

Grijalva relies on United States v. Lopez, wherein the Fifth Circuit concluded

border patrol agents did not have reasonable grounds to believe the defendant

came from the border when he was first observed “some 55 miles from the

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border” and several small towns were situated between the border and the location

at which he was observed. 564 F.2d 710, 712 (5th Cir. 1977). The present case is

clearly distinguishable and other cases are more apt. See United States v.

Quintana-Garcia, 343 F.3d 1266, 1272 (10th Cir. 2003) (the fact defendant’s

vehicle was stopped “50-60 miles from the U.S.-Mexico border” was a

“legitimate consideration[ ] for [the border patrol agent] when making his

reasonable suspicion calculus”); see also United States v. Neufeld-Neufeld, 338

F.3d 374, 381 (5th Cir. 2003) (affirming denial of motion to suppress and finding

it “noteworthy that . . . [the defendant] was thirty-five miles from the border” at

the time he was stopped).

Second, Quintana-Grijalva challenges the significance of the 72-hour lane

check, which indicated the Ford had not crossed the border via a port of entry

during the 72 hours preceding the check. He points to cases in which the

government has argued a stop is justified by a recent border crossing and argues:

“To find that a lack of recent border crossings is equally suspicious puts the agent

in a ‘heads I win, tails you lose’ position.” (Appellant’s Br. at 21 (quoting

Gonzalez-Rivera v. INS, 22 F.3d 1441, 1447 (9th Cir. 1994).) The significance of

a recent border crossing, like any fact in the reasonable suspicion analysis,

depends on its context. See, e.g., Gandara-Salinas, 327 F.3d at 1131 (holding the

totality of the circumstances, including the fact defendant’s vehicle had crossed

the border the previous day, “supports a finding of reasonable suspicion of

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criminal activity justifying the stop”); Quintana-Garcia, 343 F.3d at 1272 (where

check of defendant’s vehicle revealed it had crossed the border approximately two

to three hours before being stopped by border patrol agent, holding “the brief

amount of time the vehicle had been in the country [was a] legitimate

consideration[ ] for [the agent] when making his reasonable suspicion analysis”).

Quintana-Grijalva’s argument fails to account for the fact that here, Miranda was

specifically on the look-out for a vehicle—very possibly a white Ford F-150

extended cab pickup truck—that had crossed illegally into the United States by

cutting through a fence. If the Ford had crossed illegally, it would not show up

on a 72-hour lane check. Thus, the fact the 72-hour lane check on Quintana-

Grijalva’s vehicle was negative should have increased, rather than decreased,

Miranda’s suspicion.

Third, Quintana-Grijalva contends Miranda (and the district court) placed

too much weight on the characteristics of the particular vehicle —specifically,

that it was a white Ford F-150 extended cab pickup truck. He argues: “The fact

that the agents may have learned that another F-150 in the area may have been

involved in transporting contraband does not add to the reasonable suspicion

calculus concerning this vehicle.” (Appellant’s Br. at 23.) He contends there

were many Ford vehicles in the area and “[t]he fact that an F-150 is a common

vehicle that may lend itself to transporting cargo cannot, without significantly

more, provide reasonable suspicion for an investigative stop.” (Id. at 22.)

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Quintana-Grijalva’s argument misses the mark. What was important here was not

simply that Quintana-Grijalva was driving a Ford F-150 extended cab pickup

truck; rather, the importance lay in the fact he was driving a vehicle in an

extremely remote area which precisely matched the description of the vehicle

observed crossing illegally into the United States the previous day. Surely, the

fact Miranda observed a vehicle exactly matching the description of the vehicle

for which he was looking is an appropriate factor to consider in the reasonable

suspicion analysis, especially since the area was rarely traveled.

Quintana-Grijalva also challenges the consideration given to the facts his

vehicle had Arizona license plates, it was registered to a rental agency in Phoenix,

his erratic driving, and his demeanor. Again, we afford the presence of out-of-

state license plates differing weight depending on the facts of the case. Compare

United States v. Martinez-Cigarroa, 44 F.3d 908, 911 (10th Cir. 1995)

(concluding border patrol agent’s observation of green out-of-state license plates

resembling Colorado plates on a car he did not recognize as a local vehicle did

not “contribute measurably to the [reasonable suspicion] analysis”); and United

States v. Monsisvais, 907 F.2d 987, 991 (10th Cir. 1990) (“[T]he record does not

enable us to attach any particular significance to the appearance of Arizona

license plates in this area.”) with United States v. Barbee, 968 F.2d 1026, 1029

(10th Cir. 1992) (concluding investigative stop of vehicle was proper where, inter

alia, “the vehicle had out-of-state, Texas license plates”); and United States v.

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Leyba, 627 F.2d 1059, 1064 (10th Cir. 1980) (holding the fact “the vehicle bore

out-of-state plates” is “entitled to some limited consideration because [the border

patrol agent] did not recognize the vehicle as local traffic from the area”).

Here, the Arizona license plates contributed to Miranda’s reasonable

suspicion. We must view the circumstances “through the eyes of a reasonable and

cautious police officer on the scene, guided by his experience and training.”

Leyba, 627 F.2d at 1063 (quotations omitted). Miranda testified that in his

approximately seven years as a USBP agent in the Lordsburg, New Mexico area,

he could not recall ever encountering a vehicle with Arizona plates on Perimeter

Road that was not involved in smuggling. In his experience, smugglers often

used rental vehicles and Phoenix was a common smuggling destination. We see

no error in the weight Miranda (and the district court) afforded to these facts.

Quintana-Grijalva contends “any erratic driving was caused by the agents’

following within a few car-lengths of the Ford on a remote highway” and “[h]is

behavior was consistent with an attempt to allow a closely following car to pass.”

(Appellant’s Br. at 24.) We have held cautious driving “cannot standing alone

support a reasonable suspicion of illegal activity.” United States v. Peters, 10

F.3d 1517, 1522 (10th Cir. 1993). But here, Miranda observed more than slow

driving. The occupants of the Ford did not stop to speak to the border patrol

agents when they passed the Dodge and did not check to see how close they were

to the Dodge when they passed by. They then looked at the agents, turned away

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and looked straight ahead. As Miranda began following them, he noticed

Quintana-Grijalva looking at Miranda out of his side mirror and turning to talk to

the passenger. While these facts alone would not support a finding of reasonable

suspicion, our review must be “guided by the principle that the circumstances

surrounding a stop are not to be dissected and viewed singly; rather, they must be

considered as a whole . . . . Each case must turn on the totality of the particular

circumstances.” Leyba, 627 F.2d at 1063 (quotations omitted); see also Arvizu,

534 U.S. at 274. Viewing the totality of the circumstances, we have no trouble

concluding Miranda had reasonable suspicion of criminal activity sufficient to

justify his attempted stop of Quintana-Grijalva’s vehicle.

Quintana-Grijalva abandoned the Ford and its contents before he was

seized. Therefore, his abandonment was voluntary. In any event, Miranda had

reasonable suspicion of criminal activity at the time he attempted to stop the Ford

for further investigation. As a result, Quintana-Grijalva lacks standing to

challenge the seizure of marijuana.

AFFIRMED.

Entered by the Court:

Terrence L. O’Brien
United States Circuit Judge

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