Montero-Camargo

Opinion by Judge DAMRELL; Dissent by Judge KOZINSKI.

We must decide various issues arising from appellants’ convictions and one appellant’s sentence for federal crimes arising out of a traffic stop near a border patrol checkpoint.

I

On the afternoon of October 15, 1996, border patrol agents stationed at the Northbound Highway 86 checkpoint in El Centro, California received a tip from a passing motorist that two northbound vehi *1117 cles with Mexicali, Mexico license plates had just turned around south of the checkpoint. Border Patrol Agents Brian Johnson and Carl Fisher immediately proceeded south on Highway 86 in separate, marked vehicles. About one minute later and one mile south of the checkpoint, the agents observed a blue Chevrolet Blazer and a red Nissan sedan with Mexicali plates pull off the shoulder and onto the highway and proceed southbound. Other than a semi tractor-trailer, the agents had not observed any vehicles traveling southbound on the highway for at least ten minutes prior to receiving the tip. The area where the agents observed the vehicles pulling onto the highway is near large signs indicating that the checkpoint is open. According to the agents, the…

dissenting:

Because I am unable to find any meaningful distinction between this case and United States v. Ogilvie, 527 F.2d 330 (9th Cir.1975), I respectfully dissent.

The facts of Ogilvie are simple. Ogilvie was driving north on Interstate 19 in Arizona. See Ogilvie, 527 F.2d at 331 . Border Patrol agents had set up a checkpoint beneath an overpass that was 14 miles north of the Mexican border. When Ogil-vie got within sight of the checkpoint, she exited the highway, crossed the overpass, and headed back the way she came on the interstate. See id.; see also id. at 332 (Moore, J., dissenting). The Border Patrol agents thought her sudden change in direction was suspicious, and so chased her down and stopped her. See id. at 331 . Following the stop, they searched her car and found marijuana. The district court granted her motion to suppress and the government argued that “Ogilvie’s simple avoidance of the checkpoint, without more, gave the officers the requisite ‘founded suspicion’ ” to stop her. Id. at 331-32 . We rejected that argument, in words that read directly on our case: “There is no evidence that Ogilvie drove fast, as if running away, disobeyed any traffic laws, or…