United States v. Ivan Sigmond-Ballesteros

309 F.3d 545 UNITED STATES of America, Plaintiff-Appellee, v. Ivan SIGMOND-BALLESTEROS, Defendant-Appellant. No. 00-50408. United States Court of Appeals, Ninth Circuit. Filed October 24, 2002. Patrick K. O'Toole, United States Attorney (on brief), Carol C. Lam, United States Attorney (when opinion was filed), David P. Curnow, Assistant United States Attorney, U.S. Attorney's Office, San Diego, CA, for Plaintiff-Appellee. Vince J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant. Before: FERGUSON, TASHIMA, and FISHER, Circuit Judges. Order; Dissent by Judge KLEINFELD ORDER 1 Judges Tashima and Fisher have voted to deny the petition for rehearing en banc and Judge Ferguson so recommends. 2 A judge of the court requested a vote on en banc rehearing, but the vote failed to secure a majority of the nonrecused, active judges of the court. 3 The petition for rehearing en banc is denied. 4 KLEINFELD, Circuit Judge, with whom Circuit Judges KOZINSKI, O'SCANNLAIN, T.G. NELSON, GOULD and TALLMAN join, dissenting from denial of rehearing en banc: 5 Here we go again. The decision that we have decided not to rehear en banc defies a Supreme Court decision…

Here we go again. The decision that we have decided not to rehear en banc defies *546 a Supreme Court decision that reversed a previous decision of ours, making the identical error, arguably creates a mistaken rule on “profiling,” and reduces America’s ability to patrol its borders.

This case involves a stop, nothing more. The fellow with whom the Border Patrol Agent wanted a chat aroused his interest by numerous indices of suspiciousness:

According to the panel, “approximately eighteen people,” including several undocumented aliens, were in the back of the crew-cab — no wonder the smuggler had to take out the back seat.

The panel blithely regards all this as unsuspicious. The panel suppressed evidence that undocumented aliens were stuffed into the cab on the ground that the Border Patrol Agent didn’t have a “reasonable” suspicion supported by “a particularized and objective basis.”

We’ve been here before. 2 In Arvizu, another smuggling driver case, we held that a stop based on a similar list of factors was unconstitutional, where each factor might have an innocent explanation and none manifested unlawful conduct. 3 The Supreme Court unanimously reversed. 4 We gave lip…

ORDER

Judges Tashima and Fisher have voted to deny .the petition for rehearing en banc and Judge Ferguson so recommends.

A judge of the court requested a vote on en banc rehearing, but the vote failed to secure a majority of the nonrecused, active judges of the court.

The petition for rehearing en banc is denied.