United States v. Francisco Hernandez-Alvarado

891 F.2d 1414 UNITED STATES of America, Plaintiff-Appellee, v. Francisco HERNANDEZ-ALVARADO, Defendant-Appellant. No. 88-1265. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 9, 1989. Decided Dec. 14, 1989. Jose H. Robles, Asst. Federal Public Defender, Tucson, Ariz., for defendant-appellant. Janet K. Johnson, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of arizona. Before GOODWIN, Chief Judge, and ALARCON and NELSON, Circuit Judges. NELSON, Circuit Judge: 1 Defendant Hernandez-Alvarado appeals the district court's conviction and denial of his motion to suppress evidence. 1 Defendant claims that police officers did not have reasonable suspicion to stop his car, and thus conducted an illegal search and seizure in violation of the fourth amendment. We agree and reverse the district court's ruling. FACTUAL AND PROCEDURAL BACKGROUND 2 On December 22, 1987, United States Border Patrol Agents Christopher Truty and Diane Smith were conducting traffic surveillance on Interstate Highway 19 near Nogales, Arizona. As they headed northbound, approximately eight kilometers from the Mexican…

Defendant Hernandez-Alvarado appeals the district court’s conviction and denial of his motion to suppress evidence. 1 Defendant claims that police officers did not have reasonable suspicion to stop his car, and thus conducted an illegal search and seizure in violation of the fourth amendment. We agree and reverse the district court’s ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 1987, United States Border Patrol Agents Christopher Truty and Diane Smith were conducting traffic surveillance on Interstate Highway 19 near Nogales, Arizona. As they headed northbound, approximately eight kilometers from the Mexican border, they saw defendant’s beige Oldsmobile traveling in front of them. Agent Truty noticed that defendant’s vehicle had a large trunk capacity, capable of carrying contraband.

Truty pulled up alongside defendant’s vehicle and saw defendant and two passengers, a nine or ten-year-old and an older woman, sitting in the front seat of the car. 2 Hernandez-Alvarado looked toward the agents, then quickly turned away and directed his attention to the road. All three occupants were sitting in a rigid and uptight manner, were not speaking to each other, and appeared…

concurring in the Judgment:

I concur in the majority’s conclusion that the district court erred in denying appellant’s motion to suppress. I write separately because I do not agree with my colleagues that the facts of this case present a close question.

The Supreme Court in United States v. Sokolow, 109 S.Ct. 1581 reiterated “one of the relatively simple concepts” that in reviewing the record to determine whether reasonable suspicion existed justifying a detention, “we must consider ‘the totality of the circumstances — the whole pic-ture....’” Id. 109 S.Ct. at 1585 (quoting United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690, 694 , 66 L.Ed.2d 621 (1981)). In upholding the detention in Sokolow , the Court also relied on its prior holding in Reid v. Georgia, 448 U.S. 438 , 100 S.Ct. 2752 , 65 L.Ed.2d 890 (1980) (per curiam). In reversing a finding of reasonable suspicion in Reid v. Georgia, the Court concluded that the circumstances relied upon by the officer to justify a detention “describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case…