FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50490
Plaintiff-Appellee,
D.C. No.
v. 5:14-cr-00036-
VAP-1
NOE RAYGOZA-GARCIA,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Argued and Submitted March 8, 2018
Pasadena, California
Filed August 31, 2018
Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Jack Zouhary, * District Judge.
Opinion by Judge Murguia;
Concurrence by Judges Murguia and Zouhary
*
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
2 UNITED STATES V. RAYGOZA-GARCIA
SUMMARY **
Criminal Law
The panel affirmed (1) the district court’s denial of the
defendant’s motion to suppress narcotics that Border Patrol
Agents found in the defendant’s vehicle, and (2) the district
court’s denial of the defendant’s request for the court to take
judicial notice of other Border Patrol stops.
Given the totality of the circumstances, and giving due
weight to the Agents’ observations and the district court’s
factual findings, the panel held that the Agents, who had a
particularized and objective basis for suspecting the
defendant was engaged in criminal activity, had reasonable
suspicion to stop the defendant.
The panel rejected the defendant’s argument that this
court, or the district court, should consider evidence of
“unproductive stops” in the same area, or stops from which
no federal prosecutions arose, which the defendant contends
show that the Border Patrol Station agents were not properly
applying the reasonable suspicion standard. The panel held
that this evidence does not constitute facts that are not
subject to reasonable dispute and thus, under Fed. R. Evid.
201(b), are not the proper subject for judicial notice.
Specially concurring, Judges Murguia and Zouhary
wrote separately because although the panel is bound by
United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013)
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. RAYGOZA-GARCIA 3
(en banc), they have concerns about how this court reviews
reasonable suspicion determinations near the border.
COUNSEL
Gail Ivens (argued), King City, California, for Defendant-
Appellant.
Bram Alden (argued), Los Angeles, California, for Plaintiff-
Appellee.
OPINION
MURGUIA, Circuit Judge:
We consider defendant Noe Raygoza-Garcia’s appeal of
the district court’s denial of his motion to suppress narcotics
that Border Patrol Agents found in his vehicle. Raygoza-
Garcia contends that the initial stop of his vehicle was not
supported by reasonable suspicion and violated the Fourth
Amendment. We hold there was reasonable suspicion to
justify the stop and affirm the district court’s denial of the
motion to suppress the evidence of narcotics found as a result
of the stop. We also affirm the district court’s denial of
Raygoza-Garcia’s request for the court to take judicial notice
of evidence of other Border Patrol stops.
I.
A. The Border Patrol Agents’ Initial Observations
On March 12, 2014, Raygoza-Garcia was driving a red
Dodge Neon northbound on Interstate-15 (“I-15”)
approaching Fallbrook, California, about 70 miles from the
4 UNITED STATES V. RAYGOZA-GARCIA
United States-Mexico border. At approximately 11:30 a.m.,
Murrieta Border Patrol Station Agents Manuel Rivera and
Juan Aguayo Robles (“the Agents”) were observing
northbound traffic and saw the Dodge Neon pass their
marked Border Patrol vehicle. The Agents state that they saw
the Neon slow down from approximately the speed of the
flow of traffic in a 70-mile-per-hour zone to 50 to 55 miles
per hour. The Agents observed that the Neon slowed down
so quickly that other vehicles traveling behind it had to go
around. In their declarations, the Agents stated that in their
experience, drug smugglers will often quickly reduce their
speed when they pass by law enforcement. At the evidentiary
hearing, Agent Rivera stated, however, that smugglers will
also sometimes increase their speed when they see law
enforcement. Raygoza-Garcia testified he did not drive
slower than the rate of traffic around him.
The Agents also observed Raygoza-Garcia’s posture
when Raygoza-Garcia passed the Agents initially. The
Agents saw Raygoza-Garcia sitting upright, and he did not
look at the Agents. The Agents stated that drug smugglers
may have rigid posture because they are nervous.
The Agents decided to follow the Neon. Around this
time, they also noticed that the vehicle had a Baja California,
Mexico license plate. Agent Aguayo conducted a records
check of the vehicle, which showed it had crossed the United
States-Mexico border that morning. The vehicle had also
crossed the border multiple times in the prior month. In four
crossings in the prior weeks, the vehicle had been referred to
secondary inspection at the border, 1 but no contraband was
1
At the evidentiary hearing, Agent Rivera testified that “secondary
referral” means “the car was subjected to extra scrutiny” at the border,
usually in the form an X-ray, hand search, or canine sniff.
UNITED STATES V. RAYGOZA-GARCIA 5
ever discovered. Agent Rivera testified that the recent
secondary referrals raised his suspicion because, in his
experience, drug organizations often will “burn the car.”
“Burning the car” refers to a vehicle crossing the border
several times without contraband to develop a clean crossing
history.
Agent Aguayo also searched a database and determined
Raygoza-Garcia was not the same person who had driven the
Neon across the border that morning. The Agents declared
that switching drivers was a drug smuggling operations
tactic.
B. The Dodge Neon’s Movement
The evidence regarding the Dodge Neon’s movements
was unclear and a contested issue at the evidentiary hearing.
In their declarations, the Agents stated the driver slowed
down as the Agents followed the Neon. The Agents stated
that while following the vehicle from about ten car-lengths
behind, they saw the vehicle drift from the second lane on
the right to the lane on the far left multiple times. At the
evidentiary hearing, Agent Rivera characterized the Neon’s
movement in a number of ways. He stated that the car was
“drifting,” made an “an abrupt change,” was “swerving back
and forth,” and was “jerking,” and he also stated “[a]t one
point, [Raygoza-Garcia] changed lanes. I can’t recall.”
The Agents drew inferences from the vehicle’s
movement. In their declarations, the Agents stated that in
their experience, swerving indicated the driver was focused
on the Border Patrol vehicle rather than the road, and the
Agents had seen smugglers behave this way multiple times.
At the evidentiary hearing, Agent Rivera first stated that the
driver, Raygoza-Garcia, was paying attention to the Agents,
which led to the driver’s swerving that Agent Rivera found
6 UNITED STATES V. RAYGOZA-GARCIA
suspicious. Agent Rivera later testified that Raygoza-Garcia
was not paying attention to the Agents, which Agent Rivera
found more suspicious. Raygoza-Garcia testified that he
never changed lanes while the Agents were following him.
The Agents continued to follow the Dodge Neon from
about two car-lengths behind. At some point, the Agents
passed a marked Riverside County Sheriff’s vehicle parked
near a ramp on the I-15. The Agents stated that they then saw
the driver of the Dodge Neon “grip the steering wheel with
both hands and reduce his speed to 45–50 miles per hour.”
The Agents stated this was a sign of nervousness that
smugglers exhibit.
The Agents then initiated a vehicle stop. Raygoza-Garcia
gave consent for the Agents to conduct a canine sniff and
search the car. The search yielded packages of
methamphetamine and heroin.
C. Evidence of the Key and the Keychain
The Agents, in their initial declarations, stated that they
saw a single key in the ignition of the Neon, “without a
keychain or additional keys attached to it.” The Agents
stated that drug smuggling operations frequently provide
smugglers with only the key necessary for the vehicle and
that the Agents had apprehended “multiple smugglers in
vehicles with only one key in the ignition.” However, about
six months later, the Agents submitted amended
declarations. In their amended declarations, they stated that
their previous statements “[were] an incorrect recollection
made at the time of the declaration,” and “[a]fter recently
reviewing reports and photos from the case, [they] now
recall that there was a single key in the ignition with a
keychain.” The key to the Dodge Neon was attached to a
silver fish-shaped keychain.
UNITED STATES V. RAYGOZA-GARCIA 7
At the evidentiary hearing, defense counsel cross-
examined Agent Aguayo about the keychain inconsistency.
Agent Aguyao went back and forth on whether he in fact had
a clear view of the key in the ignition of the Neon. He stated
that he could not recall whether or not he initially noticed a
keychain. Agent Aguayo testified that what mattered to him
was the existence of a single key, not whether or not there
was a keychain.
D. Evidence of Other Stops
The defendant also challenges the district court’s
decision to not consider evidence of other stops by the
Murrieta Border Patrol Station. At the motion to suppress
hearing, defense counsel introduced a table showing other
recent Murrieta Border Patrol Station stops that Border
Patrol Special Agent Bradley Rice created and provided. The
data showed about 200 other Murrieta Border Patrol Station
stops based on dispatch operation transmissions from the
weeks surrounding Raygoza-Garcia’s stop. Agent Rice was
not aware of any of those stops resulting in referral for
federal prosecution. Defense counsel also proffered that in
his search of the court docket on PACER, 2 he could find no
Murrieta Border Patrol Station stops that led to federal
prosecutions.
Defense counsel asked the district court to take judicial
notice of the other stops from Agent Rice and the PACER
search, characterizing the stops as “unproductive” stops,
because they did not result in prosecution. Counsel argued
that this evidence showed that Murrieta Border Patrol
Station agents were often making stops not supported by
2
PACER stands for public access to court electronic records. The
PACER service provides online access to district court records.
8 UNITED STATES V. RAYGOZA-GARCIA
reasonable suspicion. The district court found there was a
lack of clarity regarding whether the information from Agent
Rice and defense counsel was complete in scope and
whether any of those stops resulted in state prosecutions.
Because of the questions regarding the accuracy and scope
of the data, the district court did not take judicial notice of
the evidence.
E. The District Court’s Order
The district court denied Raygoza-Garcia’s motion to
suppress. The court relied heavily on Agents Rivera and
Aguayo’s thirteen and six years of experience, respectively,
as Border Patrol Agents, and their significant experience in
investigating drug smuggling, in reaching its decision. The
court found that the Agents’ experience and the facts
surrounding the stop provided a particularized and objective
basis for suspecting Raygoza-Garcia of criminal activity,
which constituted reasonable suspicion.
The district court noted concern with the Agents’
credibility regarding their testimony about the “single key.”
The court questioned whether the Agents did in fact have a
clear view of the “single key,” “because the fish-shaped
keychain is slender and silver, and looks like a key itself.”
“If the Agents did not remember seeing this large keychain,
it is certainly questionable whether they could remember
seeing other keys on the keyring before stopping the Neon.”
Accordingly, the court found the single key factor only
moderately probative of the Agents’ suspicions.
The district court also discussed the disputed issue of
Raygoza-Garcia’s driving behavior. The court found the
Agents more credible and assigned more probative value to
their testimony regarding driving behavior. The district court
UNITED STATES V. RAYGOZA-GARCIA 9
then concluded there was reasonable suspicion and denied
the motion to suppress.
II.
A. Reasonable Suspicion
This court reviews reasonable suspicion determinations
de novo. United States v. Valdes-Vega, 738 F.3d 1074, 1077
(9th Cir. 2013) (en banc). We review the district court’s
finding of facts for clear error and give “due weight” to the
court’s and officer’s inferences drawn from those facts. Id.
“We thus apply ‘a peculiar sort of de novo review,’ United
States v. Arvizu, 534 U.S. 266, 278, 122 S. Ct. 744, 151
L.Ed.2d 740 (2002) (Scalia, J., concurring), slightly more
circumscribed than usual, because we defer to the inferences
drawn by the district court and the officers on the scene, not
just the district court’s factual findings.” Id. (citations
omitted).
Raygoza-Garcia argues that the Agents’ stop of his
vehicle violated his Fourth Amendment right to be free from
unreasonable seizures. We hold that the stop was lawful and
the district court did not err in denying Raygoza-Garcia’s
motion to suppress.
Border Patrol Agents on roving border patrols may
conduct “brief investigatory stops” without violating the
Fourth Amendment if the stop is supported by reasonable
suspicion to believe that criminal activity may be afoot. Id.
at 1078. “Reasonable suspicion is defined as a particularized
and objective basis for suspecting the particular person
stopped of criminal activity.” Id. (internal quotations and
citation omitted). The standard “is not a particularly high
threshold to reach,” and “[a]lthough . . . a mere hunch is
insufficient to justify a stop, the likelihood of criminal
10 UNITED STATES V. RAYGOZA-GARCIA
activity need not rise to the level required for probable cause,
and it falls considerably short of satisfying a preponderance
of the evidence standard.” Id.
When determining whether there was reasonable
suspicion, we “must look at the totality of the circumstances
of each case to see whether the detaining officer has a
particularized and objective basis for suspecting legal
wrongdoing.” Arvizu, 534 U.S. at 273 (internal quotations
and citation omitted). This approach “allows officers to draw
on their own experience and specialized training to make
inferences from and deductions about the cumulative
information available to them that might well elude an
untrained person.” Valdes-Vega, 738 F.3d at 1078 (internal
quotations and citation omitted). A “divide-and-conquer
analysis” is not appropriate, because although one’s acts
might be innocent when viewed in isolation, taken together,
the acts may warrant further investigation. Id.
When evaluating law enforcement stops of vehicles near
the border, “the totality of the circumstances may include
characteristics of the area, proximity to the border, usual
patterns of traffic and time of day, previous alien or drug
smuggling in the area, behavior of the driver, appearance or
behavior of passengers, and the model and appearance of the
vehicle.” Id. at 1079 (citing United States v. Brignoni-Ponce,
422 U.S. 873, 884–85 (1975)). The facts in a given case must
be seen through the lens of the agents’ training and
experience. Id.
Here, we conclude that the Agents had a particularized
and objective basis for suspecting that Raygoza-Garcia was
engaged in criminal activity. See id. at 1078. The district
court’s findings of fact were not clearly erroneous, and
reviewing the facts under the totality of the circumstances,
UNITED STATES V. RAYGOZA-GARCIA 11
they supported a determination of reasonable suspicion. See
id. at 1079.
The Agents here had thirteen and six years of experience,
respectively, as Border Patrol Agents, and they had
experience investigating drug smuggling operations. We
defer to the Agents’ observations and inferences from their
observations based on their experience. See id. The Agents
noted factors including the change from the Dodge Neon’s
morning driver to Raygoza-Garcia later on the same day, a
practice the Agents found related to drug smuggling
operations. The Agents also considered the vehicle’s recent
crossing history, which they noted could suggest the use of
a tactic to establish a clean record for the vehicle. The Agents
stated they learned about these techniques in their experience
as Border Patrol Agents.
In addition, we defer to the district court’s findings of
fact regarding Raygoza-Garcia’s driving behavior. The
district court found the Agents more credible than Raygoza-
Garcia on this issue, and there is no reason to believe that the
district court’s credibility findings were clearly erroneous.
See id. at 1079.
However, in reaching the reasonable suspicion
determination, the Agents also noted factors that would
apply to a vast number of drivers and the law-abiding
population. These factors include conduct that is innocent or
innocuous on its own or when looked at in isolation. But, “to
establish reasonable suspicion, an officer cannot rely solely
on generalizations that, if accepted, would cast suspicion on
large segments of the lawabiding population.” United States
v. Manzo-Jurado, 457 F.3d 928, 935 (9th Cir. 2006).
Here, Raygoza-Garcia was driving about 70 miles from
the border on the I-15, a busy highway, in moderate to heavy
12 UNITED STATES V. RAYGOZA-GARCIA
traffic. Unlike Valdes-Vega, where the defendant was
erratically driving by excessively speeding, changing lanes
frequently, and weaving in and out of traffic to evade law
enforcement, the Agents here observed Raygoza-Garcia
slow down several times and drift between lanes. See
Valdes-Vega, 738 F.3d at 1079–80. The Agents found the
reduction in speed suspicious and associated with the
behavior of drug smugglers. Slowing down on a busy
highway about 70 miles from the border after seeing law
enforcement is not suspicious on its own and “would cast
suspicion on large segments of the lawabiding population.”
Manzo-Jurado, 457 F.3d at 935. In addition, crossing the
United States-Mexico border with a Mexican license plate
and having a prior crossing history in which no contraband
was found are factors that could apply to many individuals
that drive across the United States-Mexico border. Still, we
consider the factors under the totality of the circumstances,
and even though individual acts may be “innocent in
[themselves] . . . taken together, they [may] warrant[] further
investigation.” Valdes-Vega, 738 F.3d at 1078 (first
alteration added, subsequent alterations in original) (internal
quotations and citation omitted).
Looking to the facts in this case, they show that the
Agents had significant experience and determined, based on
that experience, that a number of factors, including the
vehicle’s recent crossing history, the change in drivers on the
same day, the distracted driving, and the proximity of the
vehicle to the border, all indicated the possibility of drug
smuggling activity. The district court also heard testimony
from the Agents and Raygoza-Garcia and assessed their
credibility. Given the totality of the circumstances and
giving due weight to the Agents’ observations and the
district court’s factual findings, we hold that the Agents had
reasonable suspicion to stop Raygoza-Garcia.
UNITED STATES V. RAYGOZA-GARCIA 13
B. Evidence of Other Murrieta Border Patrol Station
Stops
Raygoza-Garcia also argues that this court should
consider the evidence he presented of other stops along the
I-15 and defense counsel’s PACER search for similar cases
to Raygoza-Garcia’s. In the alternative, Raygoza-Garcia
asks us to hold that the district court erred in not considering
the evidence of the other stops and to remand for the district
court to take judicial notice of the evidence. Raygoza-Garcia
argues that the evidence of the “unproductive stops,” or stops
from which no federal prosecutions arose, shows the
Murrieta Border Patrol Station agents were not properly
applying the reasonable suspicion standard.
A court may take judicial notice of undisputed matters of
public record, which may include court records available
through PACER. See Fed. R. Evid. 201(b); United States v.
Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (taking
judicial notice of facts regarding the suppression hearing
from the district court record in the underlying criminal
case). Here, Raygoza-Garcia asks this court to not only
consider the evidence of the existence of the other stops, but
also draw inferences from the data contained therein. We
decline to do so. There is insufficient evidence to support the
assertion that from defense counsel’s search of PACER and
the Murrieta Border Patrol Station data, agents have broadly
misapplied the reasonable suspicion standard. In addition,
the evidence Raygoza-Garcia points to is neither “generally
known within the trial court’s territorial jurisdiction” nor
“can [it] be accurately and readily determined from sources
whose accuracy cannot be reasonably questioned” as
required under Federal Rule of Evidence 201(b).
Accordingly, Raygoza-Garcia’s evidence does not constitute
facts that are not subject to reasonable dispute, and they are
14 UNITED STATES V. RAYGOZA-GARCIA
not the proper subject of judicial notice. See Fed. R. Evid.
201(b). We therefore reject Raygoza-Garcia’s argument that
we must consider the evidence of other stops or remand for
the district court to take judicial notice of the evidence.
In sum, we hold that under the totality of the
circumstances, there was reasonable suspicion that criminal
activity was afoot, and the Agents stop of Raygoza-Garcia
was lawful.
AFFIRMED.
MURGUIA, Circuit Judge, and ZOUHARY, District Judge,
specially concurring:
We write separately because although we are bound by
our decision in Valdes-Vega, we have concerns about how
we review reasonable suspicion determinations near the
border.
Reasonable suspicion, while “not a particularly high
threshold to reach,” must still mean something. United States
v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (en
banc). There must be “a particularized and objective basis
for suspecting the particular person stopped of criminal
activity.” Id. (emphasis added). This particularized standard
is not met when an officer relies solely on generalizations
that affect large segments of the law-abiding population.
Such generalizations do not indicate criminality, but rather
show innocent conduct. See United States v. Manzo-Jurado,
457 F.3d 928, 935 (9th Cir. 2006). “Seemingly innocuous
behavior does not justify an investigatory stop unless it is
combined with other circumstances that tend cumulatively
to indicate criminal activity.” Id. While Valdes-Vega
UNITED STATES V. RAYGOZA-GARCIA 15
cautions against a “divide-and-conquer” approach of factors
leading to reasonable suspicion, see Valdes-Vega, 738 F.3d
at 1078, we must pay close attention to officers’ reliance on
innocuous conduct, see Manzo-Jurado, 457 F.3d at 935.
There are limits on our deference to an officer’s
inferences. Courts “will defer to officers’ inferences only
when such inferences rationally explain how the objective
circumstances ‘arouse[d] a reasonable suspicion that the
particular person being stopped ha[d] committed or [was]
about to commit a crime.’” Manzo-Jurado, 457 F.3d at 934–
35 (quoting United States v. Montero-Camargo, 208 F.3d
1122, 1129 (9th Cir. 2000) (en banc)) (alteration and
emphasis in original). “[W]hile 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.” Id. (quoting
Montero-Camargo, 208 F.3d at 1131).
In this case, in reaching their reasonable suspicion
determination, several factors the Agents relied upon were
innocent conduct or innocuous circumstances that could
apply to a large segment of the law-abiding population
driving in Southern California. For example, driving
70 miles from the United States-Mexico border on a major
highway, crossing at the Otay Mesa port of entry, and having
a Mexican license plate do not support reasonable suspicion.
Those factors are not particularized. See Valdes-Vega,
738 F.3d at 1081 (Pregerson, dissenting). First, as the Agents
noted, the I-15 is a heavily trafficked interstate and major
north-south highway in California. Second, thousands of
individuals cross the border every day, and the Otay Mesa
port of entry saw nearly 7 million personal vehicles and over
16 UNITED STATES V. RAYGOZA-GARCIA
12 million passengers in vehicles cross in 2014. 1 This
translates to approximately 19,000 vehicle crossings per day.
Third, it is common for many Mexican nationals, including
those with Mexican license plates, to travel frequently
between the United States and Mexico. As an illustration of
this, in 2014, 1.2 million Border Crossing Card visas were
issued to Mexican nationals. 2
In addition, though not cited as a factor by the Agents
here, we have held that where a large portion of the area’s
population is Latino, officers cannot rely on an individual’s
apparent Latino appearance in making a reasonable
suspicion determination because one’s ethnicity or race is
not sufficiently particularized to indicate the criminality of a
particular person. Manzo-Jurado, 457 F.3d at 935 n.6 (citing
1
U.S. Department of Transportation, Bureau of Transportation
Statistics, Border Crossing/Entry Data, https://explore.dot.gov/t/
BTS/views/BTSBorderCrossingAnnualData/BorderCrossingTableDash
board?:embed=y&:showShareOptions=true&:display_count=no&:sho
wVizHome=no (last visited August 21, 2018). In 2017, approximately
8.3 million personal vehicles and 13.6 million personal vehicle
passengers crossed through that port of entry. Id.
2
In 2015, 2016, and 2017, over one million such visas were issued
each year. The number of visas are recorded by fiscal year. See U.S.
Department of State, Nonimmigrant Visa Statistics, Nonimmigrant
Visas Issued by Classification (Including Border Crossing Cards),
https://travel.state.gov/content/dam/visas/Statistics/AnnualReports/FY2
017AnnualReport/FY17AnnualReport-TableXVIB.pdf (last visited
August 21, 2018). NIV Detail Tables by year show that B1/B2/ Border
Crossing Cards are only issued to those from Mexico. See, e.g., FY2014
NIV Detail Table, https://travel.state.gov/content/dam/visas/Statistics/
Non-Immigrant-Statistics/NIVDetailTables/FY14NIVDetailTable.pdf
(last visited August 21, 2018); see also U.S. Department of State, Border
Crossing Card, https://travel.state.gov/content/travel/en/us-visas/
tourism-visit/border-crossing-card.html (last visited August 21, 2018).
UNITED STATES V. RAYGOZA-GARCIA 17
Montero-Camargo, 208 F.3d at 1132). Latinos make up
almost 40% of California’s population 3 and over 30% of San
Diego County. 4 Given the large Latino population in the
relevant area, Hispanic appearance is also not a
particularized factor here. See id.
The particularity requirement is undermined if officers
can rely on such generalized factors, and courts in turn defer
to officers’ inferences. Reliance on seemingly innocuous
conduct or factors can create a system that
disproportionately affects Latinos and that, in effect, allows
racially-motivated stops.
Faced with similar facts as those here, the dissent in
Valdes-Vega noted that the defendant’s Hispanic appearance
played a role in the stop, although the agents did not
acknowledge that they considered his appearance. See
Valdes-Vega, 738 F.3d at 1081 (Pregerson, dissenting). The
dissent conveys that ethnicity or race may play an unstated
role and, in the facts of that case, should not have been a
particularized basis upon which to find reasonable suspicion.
While the role of ethnicity or race may be unstated, “it is no
secret that people of color are disproportionate victims of
[law enforcement] scrutiny.” Utah v. Strieff, 136 S. Ct. 2056,
2070 (2016) (Sotomayor, dissenting). Courts must be
mindful that when officers rely on innocuous factors that
may disproportionately apply to Latinos, or other persons of
3
United States Census Bureau, Quick Facts, California, 2016,
https://www.census.gov/quickfacts/CA (last visited August 21, 2018).
4
United States Census Bureau, 2012–2016 American Community
Survey 5-Year Estimates, https://factfinder.census.gov/bkmk/table/1.0/
en/ACS/16_5YR/S0501/0500000US06073 (last visited August 21,
2018).
18 UNITED STATES V. RAYGOZA-GARCIA
color, we may be making room for racial bias—whether it
be explicit or implicit—to play a role.
While we defer to officers, courts must still evaluate the
probative value of any innocuous conduct that officers relied
upon. Valdes-Vega, 738 F.3d at 1081 (Reinhardt, dissenting)
(noting and distinguishing the innocent acts in Valdes-Vega
from those in Arvizu). “Not all acts are equal, and not all
innocent acts are suspicious.” Id. We only defer to inferences
about innocent or innocuous conduct where those inferences
rationally explain how the objective circumstances aroused
a reasonable suspicion that a defendant had committed a
crime. See Manzo-Jurado, 457 F.3d at 934–35.
While not overwhelming, there were sufficient non-
innocent and particularized factors here to support the stop
of Raygoza-Garcia. The Agents specifically noted that
Raygoza-Garcia was not the person who drove the vehicle
across the border that morning; the drivers had switched. The
Agents also noted the vehicle’s recent crossing history in a
compressed time period. In their declarations, the Agents
here stated that the tactic of switching drivers after a
“contraband load vehicle has crossed the border” is a tactic
of drug smuggling operations along the I-15 corridor. One
Agent also testified that, in his experience, drug
organizations cross a car multiple times in a short time
period without drugs to develop a “clean” crossing history,
before attempting the contraband load. These factors are
probative.
However, there was little probative value to several of
the other factors the Agents relied upon. Here, the Agents
inferred that nearly everything Raygoza-Garcia did showed
that he was part of a drug smuggling operation. For example,
not looking at the Agents was suspicious, and then paying
attention to the Agents was suspicious. Gripping the wheel
UNITED STATES V. RAYGOZA-GARCIA 19
with rigid posture was suspicious. Yet much of the general
population might exhibit similar behavior when
encountering law enforcement. Innocuous conduct like this
has no probative value.
Moreover, the Agents’ credibility was at issue here. The
Agents backtracked from their initial testimony that they
clearly saw a single key in the ignition, with no keychain or
other keys, which the Agents testified was an indication of
drug smuggling operations. The Agents claimed to have a
better recollection, albeit after viewing the evidence in the
case, and their amended declarations stated there was a
keychain along with the key. At the evidentiary hearing,
Agent Aguayo testified he couldn’t really remember what he
saw regarding the key. We need not defer to officers where
credibility issues like this cast doubt on the reasonable
suspicion determination. See Manzo-Jurado, 457 F.3d at
935. In some cases the officer’s credibility could permeate
the totality of the factors relied upon. Here, the district court
had some doubts, and appropriately chose not to rely on the
“single key” evidence.
In sum, law enforcement may not support a stop using
innocent conduct, in and of itself. Because many of these
factors may disproportionately apply to the Latino
population, as they did here, there is a risk of sanctioning
race- or ethnicity-based stops. Given the particularity of
certain relevant and probative factors the agents relied upon
in this case, and in accordance with Valdes-Vega, we do
concur. However, officers’ inferences must rationally
explain how innocuous conduct and factors establish
reasonable suspicion as to the particular person being
stopped to avoid stops that might be interpreted as premised
on race or ethnicity.