concurring and dissenting:

I concur in the affirmance as to Munoz and respectfully dissent from the reversal as to Ortiz.' However, I disagree with the reasoning of both Judge Kennedy’s and Judge Anderson’s opinions.

While two vehicles driven in tandem on a hot summer day, one with a child between two bucket seats in the front, may be an “innocuous circumstance” in certain areas of the United States, that is not the test. I do not believe that this court should substitute its judgment for that of the trial court which found as a matter of fact under all of the circumstances and in the place where the vehicles were stopped that the Border *1162 Patrol agents were justified in having a reasonable suspicion that the appellants, Ortiz and Munoz, were hauling aliens who had been brought illegally into the United States.

Whether or not the search and seizure is proper must be considered in light of all of the circumstances in each particular case. One set of circumstances occurring in Iowa may be innocuous enough, but the same set of circumstances occurring in another area may be grounds for having a suspicion of the commission of an illegal act sufficient to stop a vehicle.

For instance, if a person in a very busy garment district of Los Angeles is seen coming out of a place, making fur coats, loaded down with his arms full of fur coats and enter a van, it is doubtful if anyone would be justified in determining that to be a suspicious circumstance sufficient to warrant an officer to stop and inspect the vehicle to determine if the fur coats were stolen. But, assume the identical individual leaves a home in a suburban area which has been plagued with fur thefts and he enters that identical vehicle, then under such circumstances at that place, a law officer would be derelict in his duty if he did not consider those facts sufficient to cause him to have a reasonable suspicion of criminal activity and to stop and inspect the vehicle. So here, within a few miles of the border where literally hundreds of thousands of illegal aliens cross the border each year, and where within a few miles’ radius of the port of entry 825,000 illegal aliens were apprehended in the year 1978, the circumstances are such that the agents were justified in their conduct. To appear to be innocent is the great desire of the illegal smuggler of aliens who profits immensely from the fear of each successfully smuggled alien. The appearance of innocence can sometimes be so studied as to be itself sufficient for a well-founded suspicion. In this case, the ruse was obvious, and the practice should not be commended to the smugglers by a reversal.

I would affirm as to both Munoz and Ortiz.