FILED
NOT FOR PUBLICATION JUN 11 2012
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. 11-10310
Plaintiff - Appellee, D.C. No. CR 2:10-1387- PGR
v.
MEMORANDUM *
SALMINEO ANTHONY BAUTISTA,
AKA Sal Bautista
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted May 18, 2012
San Francisco, California
Before: CLIFTON and N.R. SMITH, Circuit Judges, and SELNA, District Judge.**
Salmineo Bautista conditionally pled guilty to violating 18 U.S.C. § 2 and 21
U.S.C. §§ 841(a)(1) and (b)(1)(D). He appeals the district court’s denial of his
motion to suppress statements and evidence obtained from a traffic stop of a vehicle
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James V. Selna, District Judge for the U.S. District
Court for Central California, sitting by designation.
in which he was a passenger. Bautista contends the traffic stop violated his Fourth
Amendment rights because it was not supported by individualized reasonable
suspicion of criminal activity. We conclude that the factual findings the district
court made and relied on for its reasonable suspicion determination were not clearly
erroneous. Considering the permissible factors present, there was reasonable
suspicion of criminal activity. We therefore affirm.
“[L]aw enforcement agents may briefly stop a moving automobile to
investigate a reasonable suspicion that its occupants are involved in criminal
activity.” United States v. Hensley, 469 U.S. 221, 226 (1985) (citing United States
v. Brignoni-Ponce, 422 U.S. 873, 881 (1975)). Such a stop is a Fourth Amendment
seizure of “everyone in the vehicle” and each occupant has standing to challenge
the stop. Brendlin v. California, 551 U.S. 249, 255 (2007). Reasonable suspicion
must be “formed by specific, articulable facts which, together with objective and
reasonable inferences, form the basis for suspecting that the particular person
detained is engaged in criminal activity.” United States v. Thompson, 282 F.3d 673,
678 (9th Cir. 2002) (internal quotation marks omitted).
After an evidentiary hearing on the motion to suppress, the district court
found (1) that the stop occurred on a “lonely road well known to be a smuggling
route”; (2) that the vehicle was traveling in tandem with another vehicle, which is
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consistent with smuggling activity; (3) that both drivers appeared to be concealing
their faces by drinking as they passed the border patrol vehicle; and (4) that the rope
flapping from the car was characteristically associated with marijuana smuggling
and was not used to hold down the trunk. None of these findings are clearly
erroneous because they are not illogical or implausible and are supported by
inferences from the record. United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.
2009) (en banc).
It is an error to rely on facts that are insufficiently particular and would
encompass large segments of the law-abiding population. United States v.
Montero-Camargo, 208 F.3d 1122, 1131-37 (9th Cir. 2000) (en banc) (finding it
error to consider the Hispanic appearance of vehicle occupants and one occupant’s
eye contact with officers followed by reading a newspaper). We find it was error to
rely on the drivers taking a drink because such action is less particular than reading
a newspaper and likely such common driver behavior it would encompass large
segments of the law-abiding population. Compare id. at 1135, 1137, with United
States v. Johnson, 581 F.3d 994, 1000 (9th Cir. 2009) (relying in part on the fact
that one of the defendant’s associates “flipped up the hood on his hooded
sweatshirt, which could aid in concealing his identity” after entering a bank).
However, all the remaining factors are sufficiently particular to support permissible
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reliance. See United States v. Palos-Marquez, 591 F.3d 1272, 1277 (9th Cir. 2010);
Montero-Camargo, 208 F.3d at 1139.
To evaluate whether a stop was supported by reasonable suspicion a court
considers “whether, in light of the totality of the circumstances, the officer had a
particularized and objective basis” for suspecting the detainee was engaged in
criminal activity. Palos-Marquez, 591 F.3d at 1274-75 (citation and internal
quotation marks omitted). Based on the remaining permissibly considered factors,
we find there was a sufficient basis to objectively form a reasonable suspicion of
criminal activity. See United States v. Diaz-Juarez, 299 F.3d 1138, 1141-42 (9th
Cir. 2002) (finding reasonable suspicion existed based on history of drug trafficking
in the region, proximity to the border, unusual characteristics of the car, and driving
behavior). Accordingly, the motion to suppress was properly denied.
AFFIRMED.
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