United States v. Benjamin J. Diaz-Juarez

dissenting.

I respectfully dissent. Although the majority purports to apply the “totality of the circumstances” test, it fails to examine all of the relevant circumstances. Consequentially, the majority undermines the fundamental protections guaranteed by the Fourth Amendment. The majority’s holding allows an officer to stop any person who is cautiously driving close to the border shortly after midnight. Because of this troubling implication, I must dissent.

The majority determines that the totality of the circumstances gave rise to an objective showing of reasonable suspicion in this case. The majority finds that Agent Rodriguez’s suspicion was initially aroused because of the time at which Diaz-Juarez 1 was driving, his presence in a “high-crime” area, his proximity to the border, and earlier reports regarding drug smuggling activity nearby. Maj. Op. at 1142. It then finds that Agent Rodriguez’s- “initial suspicion ripened into reasonable suspicion” upon observing the characteristics of Diaz-Juarez’s 1992 Mercury Grand Marquis, its “out of the area” registration, and his driving behavior. Maj. Op. at 1142.

As stated by the majority, we must examine whether all of the factors,…

299 F.3d 1138 UNITED STATES of America, Plaintiff-Appellee, v. Benjamin J. DIAZ-JUAREZ, Defendant-Appellant. No. 01-50263. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 12, 2002. Filed August 15, 2002. Katherine Kimball, San Diego, CA, for the defendant-appellant. Patrick K. O'Toole, United States Attorney, Mark A. Inciong, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Howard B. Turrentine, District Judge, Presiding. D.C. No. CR 00-2380 HBT. Before FERGUSON, TASHIMA, and GRABER, Circuit Judges. Opinion by Judge TASHIMA; Concurrence by Judge GRABER; Dissent by Judge FERGUSON. OPINION TASHIMA, Circuit Judge. 1 Defendant-Appellant Benjamin Diaz-Juarez ("Diaz") entered a conditional guilty plea to conspiracy to distribute marijuana and methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), while reserving his right to appeal. See Fed.R.Crim.P. 11(a)(2). He now appeals the district court's denial of his motion to suppress evidence based on an assertedly illegal investigatory stop. We have…

Opinion by Judge TASHIMA; Concurrence by Judge GRABER; Dissent by Judge FERGUSON.

*1140 OPINION

Defendant-Appellant Benjamin Diaz-Juarez (“Diaz”) entered a conditional guilty plea to conspiracy to distribute marijuana and methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), while reserving his right to appeal. See Fed.R.Crim.P. 11(a)(2). He now appeals the district court’s denial of his motion to suppress evidence based on an assertedly illegal investigatory stop. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I. BACKGROUND

Shortly after midnight on June 29, 2000, Border Patrol agent Arturo Rodriguez (“Agent Rodriguez”), a four-and-a-half-year Border Patrol veteran, observed Diaz traveling south on Tierra del Sol Road, approximately five miles north of the United States/Mexico border. Agent Rodriguez’s suspicions were aroused initially because residents of the local community generally were not out at that time of night. The area also was known for illegal alien crossings and smuggling activity, and there had been reports that large, military-style duffel bags, presumably filled with contraband, were about to. be moved north across the border.

Based…

concurring.

I concur in the majority opinion. I write separately only to respond to an implication in the dissent that evidence of an immigration violation could be suppressed if reasonable suspicion for the stop were lacking.

One’s identity is not a fact that can be suppressed. United States v. Guzman-Bruno, 27 F.3d 420, 421-22 (9th Cir.1994). Because the stop of Defendant led directly to no criminal charge, but only to processing for deportation, his identity as a non-citizen turned out to be the only operative fact uncovered during the stop. Thus, the border patrol agent correctly understood the legal effect of a lack of reasonable suspicion; he discovered nothing during the stop that could be suppressed. See id. (affirming conviction for being a deported alien found within the United States, notwithstanding an illegal arrest).