United States v. Argentino Purita

                                                                                FILED
                            NOT FOR PUBLICATION                                  JUL 14 2011

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                           U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 09-10483

              Plaintiff - Appellee,               D.C. No. 4:08-cr-01195-CKJ-
                                                  BPV-1
  v.

ARGENTINO SALVADORE PURITA,                       MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                              Submitted July 12, 2011 **
                              San Francisco, California

Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT,*** District
        Judge.

       Defendant Argentino Salvadore Purita stands convicted of conspiring to

transport illegal aliens for profit, 8 U.S.C. § 1324(a)(1)(A)(v)(I), and of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Otis D. Wright II, United States District Judge the
Central District of California, sitting by designation.
transporting illegal aliens for profit, 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i).

Reviewing de novo whether there was reasonable suspicion to justify a stop and

reviewing for clear error the district court’s underlying factual findings, United

States v. Palos-Marquez, 591 F.3d 1272, 1274 (9th Cir.), cert. denied, 131 S. Ct.

339 (2010), we affirm.

      An investigatory stop does not violate the Fourth Amendment "if the officer

has a reasonable suspicion supported by articulable facts that criminal activity

‘may be afoot.’" United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.

Ohio, 392 U.S. 1, 30 (1968)). Specifically, factors that may be considered to

determine whether an officer reasonably suspected that a defendant was

transporting illegal aliens include, but are not limited to: "(1) characteristics of the

area in which a vehicle is encountered; (2) proximity to the border; (3) usual traffic

patterns on the particular road; (3) previous experience with alien traffic; (4) recent

illegal border crossings in the area; (5) erratic or evasive driving behavior; (6)

aspects of the vehicle; and (7) the behavior or appearance of the driver." United

States v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir. 2002) (citing United States v.

Brignoni-Ponce, 422 U.S. 873, 884–85 (1975)).

      In this case, border patrol agents first encountered Defendant’s minivan

about four miles from the international border. They knew that the road in


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question was a major smuggling artery that was used to evade checkpoints. The

minivan was traveling at night, a time when traffic on that road was ordinarily

light. See Diaz-Juarez, 299 F.3d at 1142 (holding that a defendant’s traveling in a

high-crime area at a time when vehicle traffic is unusual may support reasonable

suspicion (citing United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000))).

Moreover, the minivan was riding low in the rear, a mere 6 to 8 inches from the

ground. See, e.g., Brignoni-Ponce, 422 U.S. at 885 (holding that a vehicle’s

appearance of being "heavily loaded" may support a reasonable suspicion of illegal

smuggling). The agents saw no cargo, and the number of passengers was

insufficient to explain the additional weight. The agents saw only the driver, the

front-seat passenger, and one rear-seat passenger, who was riding in the middle

seat. Both agents considered the rear-seat passenger’s position to be suspicious

because, in their experience, smugglers sometimes put a person in the middle seat

in an attempt to explain the laden appearance of the vehicle. In addition, the

minivan traveled at just 4 to 5 miles per hour for approximately two minutes while

the agents were following it. See United States v. Rocha-Lopez, 527 F.2d 476,

477–78 (9th Cir. 1975) (holding that reasonable suspicion was supported in part by

the fact that the defendant, upon seeing law enforcement, slowed to 10 miles per

hour).


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      The district court declined to rely on several other factors that aroused the

officers’ suspicion. But on de novo review we consider those factors relevant. For

instance, both officers testified that they saw condensation on the rear windshield

of the minivan which, in their experience, suggested that there were people in the

back of the car who were breathing heavily. Additionally, after discovering that

the car was registered to Alliance Corporation, the agents thought the minivan was

probably a rental car. Both agents testified that, in their experience, local

smuggling organizations use rental vehicles to avoid seizure of their personal

vehicles. See United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997)

(holding that the defendant’s use of a rental car supported the reasonable suspicion

that he was smuggling illegal aliens). Finally, the agents noticed that the vehicle

did not "bounce" much, which, in their experience, meant that the vehicle was

heavily loaded.

      Although Defendant offers potential, innocent explanations for each of the

facts considered by the agents, the totality of the circumstances supported a

reasonable suspicion that the minivan was being used to transport illegal aliens.

See Diaz-Juarez, 299 F.3d at 1141 ("Individual factors that may appear innocent in

isolation may constitute suspicious behavior when aggregated together." (citing




                                           4
Sokolow, 490 U.S. at 9-10)). We therefore affirm the district court’s denial of

Defendant’s motion to suppress.

      AFFIRMED.




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