United States v. Jesus E. Cortez, A/K/A Jesus E. Cortez-Espinoza, United States of America v. Pedro Hernandez-Loera

595 F.2d 505 UNITED STATES of America, Plaintiff-Appellee, v. Jesus E. CORTEZ, a/k/a Jesus E. Cortez-Espinoza, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Pedro HERNANDEZ-LOERA, Defendant-Appellant. Nos. 77-1987, 77-1951. United States Court of Appeals, Ninth Circuit. April 19, 1979. Tom O'Toole, Tucson, Ariz., for defendants-appellants. Michael D. Hawkins, Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before CHAMBERS and HUG, Circuit Judges, and FERGUSON * , District Judge. HUG, Circuit Judge: 1 Jesus E. Cortez-Espinoza (Cortez) and Pedro Hernandez-Loera (Hernandez) appeal from convictions for knowing transportation of illegal aliens, 8 U.S.C. § 1324 (a)(2), contending that the evidence used against them was the product of an illegal vehicle stop by border patrol officers and should have been suppressed. We agree and therefore reverse. 2 In late December, 1976, border patrol officers found, in the southern Arizona desert, human tracks suggesting that a man, wearing shoes bearing a distinctive "chevron" sole pattern, was engaged in the practice of leading aliens illegally into the…

Jesus E. Cortez-Espinoza (Cortez) and Pedro Hernandez-Loera (Hernandez) appeal from convictions for knowing transportation of illegal aliens, 8 U.S.C. § 1324 (a)(2), contending that the evidence used against them was the product of an illegal vehicle stop by border patrol officers and should have been suppressed. We agree and therefore reverse.

In late December, 1976, border patrol officers found, in the southern Arizona desert, human tracks suggesting that a man, wearing shoes bearing a distinctive “chevron” sole pattern, was engaged in the practice of leading aliens illegally into the United States. The officers inferred from a study of the tracks that “Chevron”, as they called him, led groups of from about eight to twenty aliens across the United States-Mexican border at night, on a journey of approximately twenty-five miles on foot to a point on Highway 86 near Sells, Arizona. Highway 86 runs generally east and west between Ajo, Arizona and Tucson. The tracks stopped at the highway and did not reappear anywhere nearby, which suggested to the officers that a vehicle had picked up the aliens. The officers’ studies further indicated that Chevron led his groups into Arizona on…

dissenting:

I find no error, much less clear error, in the district judge’s conclusion that there was founded suspicion to stop this vehicle. He listened to the witnesses, obviously credited the officers’ testimony, and then ruled that they acted on founded suspicion. This Court rarely interferes in a trial judge’s findings as to witness credibility. In any event, I find no suggestion that the majority wish to interfere. I find nothing to indicate that the officers’ testimony is not to be believed or that the officers manufactured the evidence which they said led them to suspect and to stop this vehicle. As I read the majority opinion, it is that the information which the officers had before them, and the reasonable inferences drawn from it, was insufficient as a matter of law to permit them to make this stop. I disagree.

The officers put together a series of suppositions drawn from their specialized experience in investigating alien smuggling along the Arizona border with Mexico. Each of these suppositions proved to be totally founded in fact. But the majority says that it was unfounded in law. The majority says it was a blind hunch. I call it responsible police work.

What…