United States v. Gabriel Martinez-Tapia

SNEED, Circuit Judge

(dissenting):

I respectfully dissent. The majority here fails to recognize that a police officer, like other human beings, does not *1246look at facts in isolation, but rather derives his “founded suspicion,” if such exists, from the pattern of all the facts and observations at his disposal. Thus, I can not agree with the use of an analytic technique which attempts to evaluate each element in the calculus independently without considering the whole. In the present case, the border patrol agents possessed the following information: (a) appellant’s vehicle was stopped by an agent at a point near the intersection of the highway and Indian Road, a small dirt road l1/^ miles in length which leads directly to the Mexican border; (b) while appellant’s vehicle was not actually seen on Indian Road, it was observed accelerating at a point immediately past the intersection, thus leading agents to believe that appellant had just turned onto the highway; (c) only three residences are located on Indian Road between the highway and the border, and the agents knew that appellant did not reside at any of the three; (d) Indian Road was frequently used for smuggling aliens and contraband into the United States; and (e) although the majority is correct in stating that the particular agents involved in this case had, themselves, little direct knowledge of an association between the type of vehicle involved and smuggling activities, the record also reveals that on four or five occasions during the year prior to the stop at issue here various border patrol agents had stopped similar vehicles in the area and discovered contraband. The case, I admit, is close. Nevertheless, these facts, when taken as a whole, are sufficient in my judgment to create a founded suspicion as that term was applied in Wilson v. Porter, 361 F.2d 412 (9th Cir., 1966).