United States v. Ivan Sigmond-Ballesteros

ORDER

The opinion filed on April 20, 2001, and reported at 247 F.3d 943 , is withdrawn and replaced by the amended opinion filed concurrently with this order. With these amendments, the petition for panel rehearing is denied.

OPINION

I.

On January 27, 2000, United States Border Patrol Agent James Wright (“Wright”), in his 1998 Ford Expedition, was observing traffic on Highway 86 from the median. His vehicle was facing the northbound lanes, with his headlights on, so that “any traffic traveling northbound would have been intersecting the floodlights or the direction of [the] headlights going across the freeway.” At approximately 4:20 a.m., Wright observed a F350 Ford pick-up truck with a camper shell pass his location. As the truck passed by, the driver of the truck “put his hand partially covering his face.”

Finding this gesture suspicious, Wright decided to follow Defendant. He maneuvered onto the highway and quickly caught up to Defendant, who was traveling in the fast lane. Upon realizing that Wright’s vehicle was at an unsafe distance behind him (two to three car lengths), Defendant made what was characterized by Wright as a “sudden change into the slow lane” and…