FILED

NOT FOR PUBLICATION

MAY 06 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50016

Plaintiff-Appellee, D.C. No. 3:17-cr-02745-MMA-1

v.

MEMORANDUM*

JUAN CARLOS BANDERAS-GONZALEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Argued and Submitted April 12, 2019 Pasadena, California

Before: PAEZ and CLIFTON, Circuit Judges, and ENGLAND,** District Judge.

Juan Carlos Banderas-Gonzalez appeals the district court’s denial of a

motion to suppress the fruits of a traffic stop in a town near the United States-

Mexico border. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation. Reasonable suspicion is “a particularized and objective basis for suspecting

the particular person stopped of criminal activity.” United States v. Cortez, 449

U.S. 411, 417-18 (1981). To evaluate reasonable suspicion near the border, courts

look to factors including characteristics of the area; proximity to the border; usual

patterns of traffic on the particular road; previous experience with alien traffic,

including information about recent illegal border crossings in the area; the driver’s

behavior; and vehicle characteristics. United States v. Brignoni-Ponce, 422 U.S.

873, 884-85 (1975). “In all situations the officer is entitled to assess the facts in

light of his experience in detecting illegal entry and smuggling,” id. at 885,

including “to make inferences from and deductions about the cumulative

information available to [the officer] that might well elude an untrained person.”

United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (quoting United

States v. Arvizu, 534 U.S. 266, 273 (2002)).

Here, experienced and well-trained Border Patrol agents who had reason to

be on alert at the time for potential vehicle alien pickups in the particular area they

patrolled paid close attention to factors that collectively led them to stop Banderas-

Gonzales. Those factors included, but were not limited to, the early morning hour;

their perception that the car was not well suited for the area and was not recognized

as belonging to someone who lived in the area; the vehicle’s out-of-area

2 registration; the level of tinting in the car’s back windows; and the movement

down a road leading directly to a vulnerable portion of the border, returning back

five to ten minutes later, then proceeding directly to the interstate highway that led

to San Diego. The evidence may not have been enough to establish probable

cause, but it was sufficient to establish reasonable suspicion. The officers acted on

more than a hunch in picking out this particular vehicle among the others that

passed. The motion to suppress was properly denied.

AFFIRMED.

3

FILED

US v. Banderas-Gonzalez, 18-50016 MAY 6 2019

MOLLY C. DWYER, CLERK

PAEZ, Circuit Judge, concurring U.S. COURT OF APPEALS

I write separately to note that I share similar concerns to those expressed in

Judge Murguia and Judge Zouhary’s specially concurring opinion in United States

v. Raygoza-Garcia, 902 F.3d 994 (9th Cir. 2018). I agree that “we must pay close

attention to officers’ reliance on innocuous conduct” and “[t]here are limits on our

deference to an officer’s inferences.” Raygoza-Garcia, 902 F.3d at 1002 (Murguia

& Zouhary, JJ., concurring). In my view, this was a close case as all of Banderas’s

relevant conduct was innocuous. I concur in the disposition, however, because the

Border Patrol agents had specific reasons to believe that there would be a vehicle

pick-up of people who had crossed the border illegally in the exact area that they

observed Banderas’s car approach the border and then quickly return. See id. at

1004 (citation omitted) (“We only defer to inferences about innocent or innocuous

conduct where those inferences rationally explain how the objective circumstances

aroused a reasonable suspicion that a defendant had committed a crime.”).