(dissenting):

Respectfully, I dissent.

In United States v. Holland, 510 F.2d 453 (9th Cir., 1975), we again cited with approval the rule of this circuit taken from Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), where it was said:

Id. at 415 .

One-fourth of a mile from the international border at 6:20 a. m. in May 1974, customs patrol officers patrolled an area near the beach in San Ysidro, California. One officer, with three and one-half years’ experience as a customs patrol officer, customs inspector and border patrol officer, the last six months of which had involved working in the very area in question almost daily, observfed a truck parked part way up a private driveway to the west of the highway. The driveway led to the home of a female school teacher, who was known to own passenger cars but no trucks.

On his daily patrols through the area, the officer had observed “traffic around the area, what appeared to be sea bags or boxes being drug from the brush out to the driveway.” The officer knew that there were few other residences or buildings of any kind in the immediate area where he saw the truck, and none between the driveway and the border. He also knew that the area where the truck was observed that morning was a high-crime area, since he had participated in arrests of 500 to 1,000 aliens and in three *544 or four narcotics arrests along the same road during the period he had been patrolling it.

Having never previously seen a pickup truck around the residence, and observing the defendant throwing boxes into the vehicle, the officer waited for it to return to the public road. The defendant, driving the vehicle, stopped it when he saw the uniforms of the officers. As one officer approached the driver, he noticed five or six kilos of marijuana lying in the open bed of the truck. One of the cardboard boxes had turned on its side, and the contraband therein was clearly visible. The arrest followed.

The district judge properly denied the defendant’s motion to suppress the evidence, consisting of 220 pounds of marijuana. The facts of this case, whether reconsidered in light of the totality of the circumstances (see Maj. op. at 542), or viewed in comparison with prior cases where this court has applied the leading Supreme Court decisions in the “stop and frisk” area to factual situations involving narcotics seizures, clearly support the district court’s conclusion that the “stop” at issue here was based on a “founded suspicion” of illegal activity.

This court has often held that purely arbitrary factors, alone or in combination, are of themselves insufficient to give rise to the type of “founded suspicion” necessary to justify brief noncustodial detention and interrogation. See, e. g., United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir. 1974). However, at least in high-violation areas, we have refused to disapprove such brief investigatory “stops” where otherwise innocuous activities have taken place in combination with other activities which do appear somewhat suspicious under all of the circumstances. See United States v. Larios-Montes, 500 F.2d 941, 943-44 (9th Cir. 1974); see also United States v. Nunez-Villalobos, 500 F.2d 1023 (9th Cir. 1974); United States v. Vital-Padilla, 500 F.2d 641 (9th Cir. 1974); United States v. Patterson, 492 F.2d 995 (9th Cir. 1974).

The majority seems to imply that none of the above factors could have reasonably supported the officer’s decision to question the driver of the vehicle. As to the hour, they point out that the sun was already up and the day “pretty bright.”

But the officer, who knew the ordinary habits of those on his “beat,” might well have found activity at this hour at least unusual enough to attract his attention to other activities reasonably suspicious in that context. Such was our conclusion in the case relied upon by the district court, United States v. Jaime-Barrios, 494 F.2d 455, 456 (9th Cir. 1974), where this court attached some weight to the fact that the events there in question took place at 6:30 a. m. on a July morning.

Nor does somewhat heightened surveillance of border areas subject those living in those areas to “diluted protections under the Fourth Amendment.” (Maj. op. at 542.) In the first place, it is well recognized that limited, investigatory stops of the sort contemplated by the officer in this case involve minimal incursions into the zone of Fourth Amendment interests, and can be justified by the legitimate needs of law enforcement even though less than “probable cause” exists. Adams v. Williams, 407 U.S. 143, 145-46 , 92 S.Ct. 1921 , 30 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 20-23 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

Secondly, applying the objective test which the majority correctly notes is the proper one, it does not seem unreasonable that an officer might be more suspicious of the existence of a smuggling operation XA mile from an international border than if he had observed the identical facts considerably further away from any possible smuggling entry point. This court has repeatedly held that proximity to a border is a factor which may be considered in evaluating whether founded suspicion could have existed under a given set of circumstances. See, e. g, United States v. Clark, 501 F.2d 492, 494 (9th Cir. 1974); United States v. Jaime-Barrios, supra.

Finally, we note that the brief detention by the officers was neither arbitrary nor harassing. The driver stopped for the officers when he saw their uniforms. *545 Their questioning was brief and purposeful. There was no public embarrassment or physical contact.

The final factor relied on by the district judge, which the majority finds of no value in establishing a reasonable basis for suspicion on these facts, is the agent’s familiarity with the area and its pattern of criminal activity. On this score also the district judge relied on our opinion in Jaime-Barrios . The majority attempts to distinguish that case as based on the “unique familiarity with the occupants of the area” and the more extensive “experience with past apprehensions” of the officer in that case. (Maj. op. at 543.)

I find these distinctions insignificant. It is true that the officer in this case was not a two-year resident of the area as was the apprehending officer in Jaime-Barrios . However, there is no residency requirement in order for an officer to rely on his familiarity with an area in determining when investigatory stops are warranted. Rather, it should be required only that the agent be sufficiently familiar with the area to recognize as unusual the early morning loading operations in the school teacher’s driveway.

The fact that several of the teacher’s neighbors were truck farmers did not immunize the loading operation from suspicion. And even though only three or four of the arrests this officer had made nearby over the past six months had been for narcotics smuggling, this should not have made him any less vigilant for the emergence of the type of smuggling operation which he knew from his long experience in customs work to be an all too common occurrence along the border. When he saw the boxes being loaded on the truck, his surmise that illegal activity might be afoot was certainly reasonable in light of his knowledge that the activities observed followed an identical modus operandi to that employed in other smuggling operations with which he was familiar. Cf. United States v. Larios-Montes, 500 F.2d 941, 943-44 (9th Cir. 1974); United States v. Vital-Padilla, 500 F.2d 641 (9th Cir. 1974).

While I am in disagreement with the majority’s conclusion that the judgment of the district court should be reversed, I am equally disturbed by the majority’s failure to spell out more certain standards for district courts to follow. The majority takes note of the Supreme Court’s expectation that this area of the law would develop only gradually, with the validity of investigatory stops evaluated, on the basis of careful factual determinations. (Maj. op. at 543.) However, I do not feel that such orderly common law development is inconsistent with our practice of offering as much guidance as possible to the district courts who must apply the law in myriad daily situations. I feel the majority fails to indicate with sufficient specificity what facts and circumstances may be taken into account in making the decision to detain a suspect.

Here, the district court reasonably relied on Jaime-Barrios , a case which to me appears controlling in all of its essential aspects. At some point, we must begin to pay greater deference to factual determinations of trial court that situations before them cannot be differentiated from those reported in decisions of this court. As we cautioned in Jaime-Barrios :

494 F.2d at 458 , citing Wilson v. Porter, 361 F.2d at 415 . The district court is in the best position to apply this standard.

Judged in terms of the relationship of the stop here to reasonable police interpretation of their law enforcement duties, the denial of the suppression motion seems entirely proper. Once the officer observed a pattern of activity par *546 alleled an identifiable criminal mode of operation, his ability to ask those participating in the activity a few questions to satisfy himself that the loading operation was innocent should have followed as a matter of course. The facts added up to suspicious circumstances,. and the officers were obligated to make further investigations. As we said in United States v. Holland, supra:

510 F.2d at 455 .

I would affirm.