F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 21 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
No. 03-2210
v.
LUZ MARIA VALENZUELA,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-03-218-JC)
Laura Fashing, Assistant United States Attorney, (David C. Iglesias, United States
Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff -
Appellant.
Rosanne Camunez, Las Cruces, New Mexico, for Defendant - Appellee.
Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge and HARTZ,
Circuit Judge.
KELLY, Circuit Judge.
The government appeals from an order of the district court granting
Defendant-Appellee Luz Maria Valenzuela’s motion to suppress statements made
after her arrest. Ms. Valenzuela and a codefendant were indicted for conspiracy
to possess with intent to distribute 100 kilograms or more of marijuana, 21 U.S.C.
§§ 846, 841(a)(1), (b)(1)(B), and possession with intent to distribute 100
kilograms or more of marijuana, 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C.
§ 2. The district court held that Ms. Valenzuela was arrested without probable
cause at roadside when she was handcuffed and brought to the border patrol
station. Accordingly, the district suppressed her post-arrest statements. We have
jurisdiction pursuant to 18 U.S.C. § 3731, and we affirm.
Background
On November 21, 2002, at about 9:00 a.m., Border Patrol Agent Eugene
Lewis was driving southbound on New Mexico State Highway 11. Highway 11 is
the main route for northbound traffic going through Deming, New Mexico to
Interstate 10. About four miles south of Deming, Agent Lewis observed a white
Chevrolet pickup truck driving northbound with an American flag displayed on
the hood and an American flag screen on the rear window. The truck bore an
Arizona license plate. A maroon Cadillac was traveling in the same direction two
or three cars behind the pickup truck and also bore an Arizona license plate. The
truck and Cadillac aroused Agent Lewis’s suspicions because of several recent
alien smuggling cases involving Arizona vehicles. Agent Lewis turned around to
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get a closer look at the two vehicles.
As Agent Lewis approached the Cadillac, he noticed it was covered in a
fine layer of dust, as if it had recently been driven on a dirt road. Agent Lewis
also noticed that there was something odd about the bumper holding the trim in
place, and that the Cadillac was weighted down in the back.
As Agent Lewis passed the Cadillac, the driver slowed down so that he was
now further behind the pickup truck. The driver appeared to grip the wheel
tightly and looked straight ahead without looking at the agent or otherwise
acknowledging the agent’s presence. Agent Lewis radioed in a check on the
vehicle’s registration, a stolen vehicle check, and a 72-hour lane check. The 72-
hour lane check revealed that the Cadillac had not crossed into the United States
from Mexico within the preceding 72 hours; the registration check showed that
the owner of the Cadillac was a female, but Agent Lewis had seen that the driver
was a male.
Continuing on Highway 11, Agent Lewis passed the Cadillac and the two
vehicles that were between the Cadillac and the pickup truck. As he passed the
pickup truck, the Agent Lewis saw the driver’s head was resting on his or her
hand, and the hand was covering the left side of the driver’s face so that Agent
Lewis could not determine whether the driver was male or female.
Agent Lewis continued to drive towards Deming, where he pulled over to
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get a second look at the Cadillac. He again noticed that the Cadillac appeared to
be weighted down in the back, and radioed Agent Richard Huerta to assist in
stopping the Cadillac. Agent Lewis then pulled back onto Highway 11 to follow
the Cadillac, but was unable to get directly behind it because of traffic.
Agent Lewis next saw the two vehicles in Deming, and noted that the
Cadillac sometimes traveled directly behind the pickup truck. Agent Lewis lost
sight of the vehicles where Highway 11 passes under Interstate 10. In total, the
two vehicles went through two stop signs and three stop lights from the point
where Agent Lewis first observed them on Highway 11 to where they entered
Interstate 10, approximately seven miles later.
Because both vehicles had Arizona plates, Agent Lewis suspected that they
were driving in tandem and would turn onto westbound Interstate 10 towards
Arizona. About eight miles from the intersection of Highway 11 and Interstate
10, Agent Lewis spotted the Cadillac as it was changing lanes and passing other
vehicles. Agent Lewis sped up, and as he approached the Cadillac, he also saw
that the pickup truck was about a quarter mile behind the Cadillac. Several
tractor trailers and other vehicles were between the Cadillac and the pickup truck.
Agent Lewis passed the pickup truck, and pulled in behind the Cadillac.
The Cadillac, which had been traveling at about 80 miles per hour in a 75 mile
per hour zone, then slowed down to about 50-60 miles per hour. The pickup truck
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then passed Agent Lewis and the Cadillac, at which point Agent Lewis radioed
Agent Huerta to tell him to look for it. Agent Lewis activated his emergency
equipment and stopped the Cadillac.
Agent Lewis approached the driver, Julio Armando Reynaga-Cortes, and
questioned him about his citizenship. At first Mr. Renaga acted confused, but
then he said that he was from Mexico. Upon Agent Lewis’s request, Mr. Reynaga
produced two Republic of Mexico passports. Mr. Reynaga was visibly nervous
and unable to locate the Visas in the passports. Agent Lewis then asked to see
what was in the trunk. At first, Mr. Reynaga asked why he wanted to know, but
upon repeated requests, Mr. Reynaga opened the trunk. Inside were bundles of
marijuana.
Mr. Reynaga said he did not know the vehicle had anything in the trunk,
and that he had picked up the vehicle at the Fina gas station in Columbus. Mr.
Reynaga did not indicate that he was traveling with the pickup truck, nor was he
asked any questions about the pickup truck at that point.
Agent Lewis then radioed Agent Huerta, informed him that marijuana had
been found in the Cadillac and that the two vehicles were traveling in tandem, and
asked Agent Huerta to stop the pickup truck and see if he could transport the
driver to the Deming border patrol station.
Agent Huerta accordingly stopped the truck and asked the driver, Ms.
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Valenzuela, to accompany him to the station; Ms. Valenzuela agreed. Agent
Huerta, however, did not allow Ms. Valenzuela to follow him to the station in her
own truck. Instead, he took her keys and driver’s license, and another agent
drove her vehicle to the station. Because no female agents were present to pat
down Ms. Valenzuela for weapons, an agent placed her in handcuffs prior to
transporting her to the station. Ms. Valenzuela was cooperative with Agent
Huerta at all times. Up until the time Ms. Valenzuela agreed to go to the station,
Agent Lewis did not inform her that he was going to handcuff her. When Ms.
Valenzuela was handcuffed, Agent Huerta observed nothing that made him think
she was carrying drugs in her vehicle, possessed a weapon, or was otherwise
dangerous or violating the law.
At the border patrol station, Agent Huerta advised Ms. Valenzuela of her
Miranda rights, and Ms. Valenzuela signed a form indicating her understanding
and waiver of those rights. Agent Christine Britol questioned Valenzuela for
about 40 to 45 minutes, during which time Ms. Valenzuela made several
incriminating statements. Finally, Ms. Valenzuela invoked her right to an
attorney.
After an evidentiary hearing, the district court found that Ms. Valenzuela
was arrested at roadside at the time the handcuffs were placed upon her. The
parties then submitted supplemental briefs on whether probable cause existed to
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arrest Ms. Valenzuela. In a written opinion, the district court then considered and
rejected six factors claimed by the government to support probable cause: (1) both
the Cadillac and the truck driven by Defendant Valenzuela bore Arizona license
plates, (2) Defendant Valenzuela and the driver of the Cadillac drove near each
other on two highways close to the border, (3) when Agent Lewis passed Ms.
Valenzuela’s truck, her left hand was covering her face, (4) after Agent Lewis
pulled in behind the Cadillac, Ms. Valenzuela passed the Cadillac rather than
remain nearby to render assistance, (5) the Cadillac was covered with dust while
the pickup truck was not, and (6) approximately 250 pounds of marijuana were
found in the Cadillac. In a nutshell, the district court found that the government
simply had not shown a nexus between the Cadillac and the pickup truck at the
time of the arrest. No objective evidence supported the government’s contention
that the Cadillac and the pickup truck were traveling in tandem.
Having lost the probable cause issue, the government then moved for
reconsideration of the district court’s finding that Ms. Valenzuela was arrested at
the time she was handcuffed. The government also requested a supplemental
hearing to develop facts as to when Ms. Valenzuela was arrested. The district
court rightly viewed the request for another hearing as “a second bite at the
apple.” Aplt. App. at 104. It denied both requests, reasoning that the issue of
when Ms. Valenzuela was arrested was plainly before the court, there having been
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two rounds of briefing. Further, the court held that a finding contrary to the
original determination would be completely against the evidence developed at the
suppression hearing.
Discussion
The government’s only argument on appeal is that the border patrol agents
had probable cause to arrest Ms. Valenzuela when they took her to the border
patrol station for questioning. The government does not challenge the district
court’s finding that Ms. Valenzuela was arrested when she was handcuffed, nor
the district court’s denial of the government’s request to reopen the matter.
In reviewing a district court’s order to suppress evidence, we review the
district court’s factual findings for clear error, considering the evidence in the
light most favorable to the district court’s determination. United States v. Rice,
358 F.3d 1268, 1273-74 (10th Cir. 2004). The ultimate determination of whether
probable cause to arrest existed is a legal issue that we review de novo. United
States v. Edwards, 242 F.3d 928, 933 (10th Cir. 2003).
An arrest is “characterized by highly intrusive or lengthy search or
detention,” and must therefore be supported by probable cause. Oliver v. Woods,
209 F.3d 1179, 1185 (10th Cir. 2000); see also Tennessee v. Garner, 471 U.S. 1, 7
(1985). Probable cause to arrest exists only when the “facts and circumstances
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within the officers’ knowledge, and of which they have reasonably trustworthy
information, are sufficient in themselves to warrant a man of reasonable caution
in the belief that an offense has been or is being committed.” Edwards, 242 F.3d
at 934; see also Draper v. United States, 358 U.S. 307, 313 (1959). Although
“[p]robable cause does not require facts sufficient for a finding of guilt . . . , it
does require more than mere suspicion.” United States v. Morris, 247 F.3d 1080,
1088 (10th Cir. 2001) (internal quotation marks omitted). The Supreme Court has
made the following distinction between reasonable suspicion, which is sufficient
for an investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968), and probable
cause, which is required before an arrest can be made:
Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be
established with information that is different in quantity or
content than that required to establish probable cause, but also in
the sense that reasonable suspicion can arise from information
that is less reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990).
Probable cause is measured against an objective standard. Beck v. Ohio,
379 U.S. 89, 96 (1964). The subjective belief of an individual officer as to
whether there was probable cause for making an arrest is not dispositive. Florida
v. Royer, 460 U.S. 491, 507; United States. v. Treto-Haro, 287 F.3d 1000, 1006
(10th Cir. 2002). Thus, the primary concern is “whether a reasonable officer
would have believed that probable cause existed to arrest the defendant based on
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the information possessed by the arresting officer.” Olsen v. Layton Hills Mall,
312 F.3d 1304, 1312 (10th Cir. 2002) (internal quotation marks and alterations
omitted).
The government argues that “[o]nce Agent Lewis stopped the Cadillac and
found 250 pounds of marijuana in the trunk, he had probable cause to believe that
the driver of the pickup was acting in concert with the driver of the Cadillac.”
Aplt. Br. at 13. Significantly, the government does not argue that probable cause
arose at any point after Ms. Valenzuela’s truck was pulled over. According to the
government, there was probable cause to arrest Ms. Valenzuela because (1)
“Valenzuela drove in close proximity to the Cadillac for twenty-five miles on two
separate highways and through a town where there were many opportunities to
turn off the road or stop;” (2) “although the pickup and the Cadillac traded
positions and sometimes allowed several vehicles to drive between them, the
pickup led the Cadillac through Deming, the most complicated part of the trip;”
(3) “both cars had Arizona license plates, which was consistent with Agent
Lewis’s experience and knowledge of recent alien smuggling cases;” (4)
“Reynaga, the driver of the Cadillac[,] was confused and not fluent in English,
making it probable that he had followed another driver through Deming, the most
complicated part of the trip;” (5) “the pickup was covered with two large
American flag decals, which was the sort of highly conspicuous marking typical
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of a scout vehicle;” (6) “the Cadillac was covered in a fine layer of dust,
consistent with having traveled on a dirt road and being the load vehicle, while
the pickup was clean, consistent with being the scout vehicle;” (7) “Valenzuela’s
hand was covering the left side of her face as Agent Lewis passed her, possibly in
an effort to conceal herself from the agent;” and (8) “Valenzuela and Reynaga
were traveling within fifty miles of the Mexican border along a route that is often
used to smuggle aliens and drugs.” Aplt. Br. at 12-13. The government also
relies on the fact that Agent Lewis found 250 pounds of marijuana in Mr.
Reynaga’s trunk.
We hold that the district court correctly evaluated the similar factors before
it, and the additional factors now relied upon by the government as supporting
probable cause are both waived and without merit. Because the government has
pointed out eight specific facts that it argues support probable cause to arrest, we
will address these facts in the order presented above. We note, however, that no
single factor is determinative, and we view the circumstances in their totality
rather than individually. As the government correctly points out, courts may not
engage in a “divide-and-conquer” analysis of facts to determine whether probable
cause existed. See United States v. Arvizu, 534 U.S. 266, 274 (2002).
However, neither may a court arrive at probable cause simply by piling
hunch upon hunch. Thus, in assessing the totality of the circumstances, a
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reviewing court “must examine the facts individually in their context to determine
whether rational inferences can be drawn from them” that support a probable
cause determination. United States v. Martinez-Cigarroa, 44 F.3d 908, 911 (10th
Cir. 1995). A factor does not become irrelevant simply because it is “readily
susceptible to an innocent explanation.” Arvizu, 534 U.S. at 274. Thus, in
determining whether probable cause to arrest existed, we look not only to the
facts supporting probable cause, but also to those that militate against it. United
States v. Johnson, __ F.3d __, No. 03-2153, 2004 WL 811809, at *7 (10th Cir.
Apr. 15, 2004).
The government places great weight on the fact that Ms. Valenzuela and
Mr. Reynaga were traveling in “close proximity” to each other. However, when
we strip away the rhetoric we have only two facts–both vehicles had Arizona
plates and both were heading toward Arizona on an Interstate highway. Hardly
unusual.
Although other circuits have noted that tandem driving may be indicative of
criminal activity in certain circumstances, see United States v. Montero-Camargo,
208 F.3d 1122, 1139 (9th Cir. 2000), we agree with the district court’s conclusion
that there are insufficient facts to demonstrate that the pickup truck was driving in
tandem with the Cadillac. While Agent Lewis followed the two vehicles for
approximately 25 miles, he lost contact with both vehicles for at least eight of
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those miles. Aplt. App. at 121, 146. When Agent Lewis initially observed the
vehicles on Highway 11, two other vehicles separated the Cadillac from Ms.
Valenzuela’s truck. Id. at 119-20. Moreover, for the approximately seven miles
that agent Lewis followed the vehicles on Highway 11, there were cars between
the Cadillac and Ms. Valenzuela’s truck. Id. at 146.
On Interstate 10, Agent Lewis lost sight of Ms. Valenzuela’s truck, but
spotted the Cadillac speeding ahead. Once Agent Lewis located both vehicles on
the Interstate, the closest he saw them was a distance of a quarter mile. Id. at
147. The truck was traveling in a different lane, separated from the Cadillac by a
number of tractor-trailer rigs and other vehicles. Id. at 148. In fact, the only time
Agent Lewis ever saw the Cadillac and truck actually travel next to each other,
with the Cadillac directly behind the truck, was as both vehicles were clearing the
intersection of Pine Street and Gold in Deming–by the entrance of Interstate
10–right before he lost them. Id. at 131-32.
We also find record support for the district court’s conclusion that adequate
evidence did not support a theory that the truck was the lead (scout) vehicle for
the Cadillac. Although Ms. Valenzuela’s truck was driving ahead of the Cadillac
on Highway 11, that was not the case on the Interstate, where the pickup truck
was a quarter mile behind the Cadillac. This undermines any “infer[ence] that the
lead car-load car scheme was being used [because] the purported scout car was
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actually following, rather than preceding, the lead car.” United States v. Barnard,
553 F.2d 389, 392 n.5 (5th Cir. 1977); see also United States v. Escamilla, 560
F.2d 1229, 1234 (5th Cir. 1977) (“the so-called ‘scout car’ here was behind,
rather than in front of, the ‘load car’, a circumstance . . . which forbids the use of
the ‘lead car-load car’ inference”); United States v. Barragan-Martinez, 504 F.2d
1155, 1157 (9th Cir. 1974). The government understandably attempts to
downplay the fact that the pickup truck was lagging far behind the Cadillac, but in
considering the totality of the circumstances we must give due weight to it.
Additionally, according to Agent Lewis, lead vehicles usually “scout[] the
highway . . . for law enforcement,” “run interference,” or “try to draw your
attention away from the load vehicle” by speeding up or driving erratically. Aplt.
App. at 154. Agent Lewis testified that the pickup truck was not speeding,
driving too slowly, trying to evade him, or driving improperly in any way. Id. at
140. On the contrary, it was the Cadillac that was speeding on Interstate 10 while
the truck was driving at a normal speed. Id. at 158. Indeed, Agent Lewis
acknowledged that nothing in the manner the two vehicles were traveling on
Interstate 10 led him to believe they were driving in tandem; had he not seen the
truck and the Cadillac driving on Highway 11 earlier, he would not have made
any association between them. Id. at 148.
The district court also rejected the theory that Ms. Valenzuela’s driving
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past the Cadillac and Agent Lewis on Interstate 10 after Agent Lewis pulled in
behind the Cadillac constitutes evidence of tandem driving that would support
probable cause. According to the government, because an innocent person
driving in tandem with a vehicle that is pulled over most likely would stop to
render assistance, Ms. Valenzuela’s failure to render assistance to Mr. Reynaga is
inconsistent with legitimate or innocent tandem driving. Had Ms. Valenzuela
stopped, that might be evidence of tandem driving. But to argue that her
proceeding on her way is evidence of tandem driving (be it legitimate or
illegitimate) is preposterous. United States v. Sigmond-Ballesteros, 285 F.3d
1117, 1122 (9th Cir. 2001). As the district court noted, “[t]he much more logical
conclusion is that Defendant passed by Agent Lewis and the Cadillac because she
was not driving in tandem with the Cadillac.” Aplt. App. at 80.
The government also argues that tandem driving was evident because the
two vehicles drove “through a town where there were many opportunities to turn
off the road or stop,” and “the pickup led the Cadillac through Deming, the most
complicated part of the trip.” Aplt. Br. at 12-13. We take judicial notice that
Deming, although a lovely town, is hardly a metropolis, and is on the route to
Arizona. Indeed, Agent Lewis acknowledged that Highway 11 to westbound
Interstate 10 is the main route to Arizona. Aplt. App. at 133. This is not an
instance where two vehicles were traveling on a seldom-used remote road to avoid
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detection. Instead, the two cars, close to the Arizona border, were both taking the
most direct highway to Arizona amidst the mid-morning traffic.
We also agree with the district court that Arizona license plates on both
vehicles (seventy miles away from Arizona) are hardly indicative of illegal
activity or tandem driving. See United States v. Martinez-Cigarroa, 44 F.3d 908,
911 (10th Cir. 1995). The government argues that Arizona plates triggered Agent
Lewis’s knowledge of recent alien smuggling cases. However, no evidence in the
district court established how many recent border patrol stops due to illegal
smuggling activity involved vehicles with Arizona plates and how many Arizona
vehicles on legitimate business are generally found in the area. Thus, this case is
remarkably similar to United States v. Monsisvais, 907 F.2d 987, 991 (10th Cir.
1990), where we noted that “[a]lthough Arizona cars must certainly be less
common on this stretch of road than those bearing New Mexico plates, we cannot
find any basis in the record from which to conclude that Arizona-plated vehicles
are any more likely to be transporting aliens near Truth or Consequences than are
vehicles bearing the license plates of New Mexico or, for that matter, Texas or
Colorado.”
The government relies upon United States v. Montero-Camargo, 208 F.3d
1122 (9th Cir. 2000), in arguing the significance of the license plates to
smuggling. But that case is readily distinguishable. While the two vehicles in
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Montero-Camargo had foreign (Mexicali) license plates, they both turned around
in the middle of a highway shortly before a police checkpoint and pulled off the
shoulder together, stopping in an area where criminal activity often took place.
More importantly, the circumstances in Montero-Camargo–as well as United
States v. Arbizo, No. 89-10635, 1991 WL 33102 (9th Cir. Mar. 12, 1991), also
cited by the government–only supported reasonable suspicion for a stop, not the
more demanding standard of probable cause for an arrest of a driver. Even
insofar as establishing reasonable suspicion, the significance of such evidence is
far from certain. As the Ninth Circuit stated in limiting the effect of two cars
driving in close proximity to each other, such occurrences “may be given some
direct weight in the reasonable suspicion analysis. They do not, however,
constitute substantial factors. . . .” Montero-Camargo, 208 F.3d at 1139.
In further support of its tandem driving theory, the government argues that
Mr. Reynaga’s apparent confusion and lack of English fluency make it more
probable than not that he followed another driver through Deming, the most
complicated part of the trip. First, the government did not assert Mr. Reynaga’s
confusion and language abilities as a consideration in the probable cause analysis
in the district court, see Aplt. App. at 35-36, and the court did not evaluate it for
this purpose. We are thus under no obligation to consider it. Thompson v. United
States, 223 F.3d 1206, 1211 (10th Cir. 2000). Even if the factor were raised,
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however, it is essentially a non sequitur. The government has provided us with no
authority tending to show that a driver’s confusion upon being stopped or lack of
English fluency makes it any more likely that a driver in front of him, or in this
case behind him, is committing a crime, and we have found no such authority in
our research. We know of no New Mexico or Arizona language requirements for
drivers, cf. Maso v. State of N.M. Taxation & Rev. Dept., 85 P.3d 276, 282 (N.M.
Ct. App. 2004), and it is simply unremarkable that a driver thirty miles north of
the Mexican border would have some difficulty conversing in English. Moreover,
the record lacks any evidence suggesting that Mr. Reynaga needed any assistance
in his travel, or that the travel through Deming to Interstate 10 was complicated in
any way.
The government also argues that the flags displayed on the truck provide a
highly conspicuous appearance consistent with a lead vehicle. Again, the
government raises this consideration for the first time on appeal, and the district
court did not make factual findings supporting this line of argument. The record
is silent as to the size or noticeability of these flags, but even if conspicuous, the
government’s ipse dixit that large American flag decals are the sort of highly
conspicuous markings of a scout vehicle strikes us as beyond the pale. In this
post-September 11th day and age, it is not at all unusual for drivers to adorn their
cars with such symbols of patriotism. See Leslie Linthicum & Lloyd Jojola, An
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Uncommon Year, Albuquerque Journal, Dec. 30, 2001, at A1. In reviewing the
totality of the circumstances, this fact does not add considerable weight to our
probable cause analysis. Cf. Reid v. Georgia, 448 U.S. 438, 441 (1980) (conduct
that “describe[s] a very large category of presumably innocent travelers” is
insufficient to constitute a reasonable suspicion).
The government makes much of the fact that “the Cadillac was covered in a
fine layer of dust, consistent with having traveled on a dirt road and being the
load vehicle, while the pickup was clean, consistent with being the scout vehicle.”
Aplt. Br. at 13. According to the government, it is not unusual for a load car to
enter the United States from Mexico using dirt roads to avoid the Port of Entry at
Columbus, and then meet the lead car, which waits across the border. Given the
dearth of evidence that would support a tandem arrangement, we agree with the
district court that this highly overinclusive rule counts for little. Nothing (other
than a hunch) connects the dust on the Cadillac with the lack of dust on the truck.
Without at least some more evidence as to the frequency of such dirty car-clean
car situations, it appears that the dissimilarity would, if anything, tend to detract
from the lead car-load car theory.
The government’s argument that Ms. Valenzuela’s covering of her face
adds to a probable cause determination does not withstand analysis. In support of
this claim, Agent Lewis testified that he observed Ms. Valenzuela leaning her
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head on her hand while driving, and leaning her arm on the driver’s side door of
the truck. Aplt. App. at 134. However, Agent Lewis testified that Ms.
Valenzuela was already resting the left side of her face in her left hand when he
first saw her, and he never saw her put her hand up to her face in an effort to
hide. Id. at 161. In fact, Agent Lewis admitted that based on his observation of
Ms. Valenzuela, it was as likely for her to have been relaxing while driving as it
was for her to be trying to hide her face. Id. at 134-35. The district court, in
interpreting this evidence, found that Ms. Valenzuela “maintained this position as
a way to relax while driving.” Id. at 80. Because the district court was in the
best position to weigh the evidence, we appropriately defer to its findings of fact.
Moreover, in undertaking probable cause determinations, we have recognized that
“[s]ome facts must be outrightly dismissed as so innocent or susceptible to
varying interpretations as to be innocuous.” United States v. Lee, 73 F.3d 1034,
1039 (10th Cir. 1996). Ms. Valenzuela’s resting of her head in her hand while
driving is just such a fact. See United States v. Welker, 689 F.2d 167, 169 (10th
Cir. 1982).
The government next urges that the two vehicles were traveling within fifty
miles of the Mexican border along a route that is often used to smuggle aliens and
drugs. It is true that proximity to the border is a relevant factor in determining
whether there is reasonable suspicion to stop a vehicle in the border area. See
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United States v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975). However, because
“[r]oads near the border carry not only aliens seeking to enter the country
illegally, but a large volume of legitimate traffic as well,” the mere fact that the
two vehicles were traveling close to the Mexican border does not dispense with
the probable cause requirement. Id. at 882. In light of the more demanding
standard of probable case, coupled with the government’s lack of evidence that
Ms. Valenzuela’s driving raised any legitimate suspicions of illegal activity, we
do not think that this fact adds any significant weight to our analysis, as “mere
proximity to the border does not automatically place the citizenry within a
deconstitutionalized zone.” United States v. Newell, 506 F.2d 401, 405 (5th Cir.
1975) (internal quotation marks omitted).
In light of the above, the presence of marijuana in Mr. Reynaga’s vehicle
adds little to the probable cause analysis. We have considered the totality of the
circumstances known to the border patrol agents, and conclude that the evidence
connecting Ms. Valenzuela to the unlawful endeavor in the Cadillac was simply
missing when the arrest occurred.
Finally, the government argues that the district court should have deferred
to Agent Lewis’s expertise in making inferences from these facts. In support of
this argument, the government relies on United States v. Gandara-Salinas, 327
F.3d 1127 (10th Cir. 2003). Gandaras-Salinas, however, held only that courts
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should accord proper deference “to an officer’s ability to distinguish between
innocent and suspicious actions.” Id. at 1130. It is true that “[i]n reviewing on-
the-scene judgments of police officers we must, of course, remember that police
officers may well ‘draw inferences and make deductions . . . that might well elude
an untrained person.’” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002)
(quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). However, “an
officer’s inferences and deductions can only justify a warrantless arrest if the
government satisfies its burden of establishing the probable cause necessary to
support the arrest.” Id. Additionally, in making our probable cause
determination, we must look at the facts through the scope of a reasonable officer.
United States v. Anderson, 981 F.2d 1560, 1566 (10th Cir. 1992). To defer to an
officer’s interpretation of the facts without applying judgment informed by the
Fourth Amendment would eviscerate the need for a judicial determination of
probable cause.
The inescapable conclusion to be drawn from the record is that Agents
Lewis and Huerta suffered from a lack of communication and failed to fully
investigate the facts before arresting Ms. Valenzuela. Agent Lewis testified that
he only told Agent Huerta to stop the vehicle and see if he could transport Ms.
Valenzuela to the border patrol station. Aplt. App. at 162-63. It is not exactly
clear why Agent Huerta felt compelled to handcuff Ms. Valenzuela and put her in
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the back of his vehicle, particularly since she had consented to go to the station to
answer questions. Moreover, despite his suspicions, Agent Lewis failed to use
any available investigative tools to confirm his thoughts. Remarkably, none of
the agents ever even asked Mr. Reynaga or Ms. Valenzuela at roadside whether
they were traveling together. Careless police work does not justify dispensing
with the Fourth Amendment.
AFFIRMED.
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