Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding D.C. No. 5:09-cr-00024-VAP-1
The opinion of the court was delivered by: Pregerson, Circuit Judge:
Argued and Submitted December 5, 2011-Pasadena, California
Before: Harry Pregerson and Mary H. Murguia, Circuit Judges, and Suzanne B. Conlon, District Judge.*fn1
Opinion by Judge Pregerson; Dissent by Judge Conlon
Defendant Rufino Ignacio Valdes-Vega ("Valdes-Vega") appeals the district court's denial of his motion to suppress cocaine found in his truck. Valdes-Vega contends that the stop of his truck by Border Patrol Agents 70 miles north of the U.S.-Mexico Border violated the Fourth Amendment, and consequently, the cocaine found in his truck must be suppressed. We agree. The totality of the circumstances in this case did not provide Border Patrol Agents with reasonable suspicion to believe that Valdes-Vega was smuggling drugs or aliens. Accordingly, we reverse the district court's denial of Valdes-Vega's motion to suppress.
A. The Stop of Valdes-Vega's Truck
On January 21, 2009, Border Patrol Agent Luis Lopez was conducting surveillance in an unmarked vehicle on the northbound shoulder of Interstate 15 ("I-15"), near Fallbrook, California, approximately 70 miles north of the U.S.-Mexico Border. At approximately 2:00 p.m., Agent Lopez observed a red Ford F-150 pickup truck in the far right northbound lane "traveling faster than the flow of traffic." Agent Lopez began to follow the truck. While he was following the truck, Agent Lopez observed the truck make "erratic lane changes without signaling." As Agent Lopez followed the truck, he noticed the truck had Baja California license plates. Eventually, Agent Lopez lost sight of the truck because it was moving too quickly and was "weaving in and out of traffic." Agent Lopez then notified Border Patrol Agent Jeffrey Hays of his observations and asked Agent Hays to provide assistance.
Agent Hays was on patrol in a marked vehicle when he received Agent Lopez's request for assistance. After speaking with Agent Lopez, Agent Hays entered I-15 at Mission Road, headed northbound, and attempted to catch up with the truck. Agent Hays eventually caught up with the truck just south of the Temecula Border Patrol Checkpoint ("Temecula Checkpoint"). At this point, it appeared to Agent Hays that the truck was traveling "over 90 miles per hour." According to Agent Hays, the flow of traffic at that time of day on I-15 was 70 to 80 miles per hour.
While he was following the truck, Agent Hays observed the truck change lanes without signaling. Agent Hays then observed the truck slow to 70 miles per hour as it approached the Temecula Checkpoint, which was not operational that day. The truck then moved over to the number two lane by cutting in front of the vehicles directly behind it. After the truck passed the Temecula Checkpoint, Agent Hays pulled alongside the passenger side of the truck and observed a man (who was later identified as Valdes-Vega) behind the wheel.*fn2
Valdes-Vega was looking straight ahead and did not make eye contact with Agent Hays. Agent Hays noticed that the truck had an older body style, appeared clean, and had Baja California license plates. At this point, Agent Hays concluded that the driver's behavior "was consistent with the behavior of alien and drug smugglers who encounter law enforcement in this area," and decided to stop the vehicle. Approximately a mile and a half past the Temecula Checkpoint, Agent Hays turned on his emergency lights and stopped the truck. Valdes-Vega consented to a subsequent search of his truck, which revealed approximately 7.991 kilograms of cocaine.
B. The District Court Proceedings
Valdes-Vega was indicted on one count of possession with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Valdes-Vega moved to suppress the cocaine found in his truck, claiming that the cocaine was obtained in violation of the Fourth Amendment. After holding an evidentiary hearing, the district court denied Valdes-Vega's motion to suppress.
In denying Valdes-Vega's motion to suppress, the district court found that the "totality of the circumstances" satisfied the reasonable suspicion standard required to stop a vehicle. Specifically, the district court found that the following facts, when aggregated, provided Agents*fn3 with reasonable suspicion for the vehicle stop:
* Proximity to the Border: The district court cited the proximity of the stop to the U.S./Mexico border (70 miles from the border).
* Traffic Patterns: The district court noted that the speed of Valdes-Vega's vehicle (90 miles per hour) was not typical for traffic in that area at that time of day, which Agent Hays testified was 70 to 80 miles per hour.
* The behavior of the driver: The district court noted that Valdes-Vega had an "erratic driving pattern" because he "was speeding, changing lanes frequently, or weaving in and out of traffic, [and] braking unexpectedly in front of other drivers." The district court also noted that ValdesVega's "behavior changed" abruptly just south of the checkpoint because he "slowed down and then sped up to get through [the checkpoint] as quickly as possible."
* The model and appearance of the vehicle: The district court noted that Valdes-Vega's truck had Baja California license plates and "was a large truck, a Ford F-150, which meant that it was more suited to carrying large amounts of contra- band, drugs, or perhaps human beings. And it was also harder for ...