United States v. Karim Hussein Al Nasser, AKA Karim Hussein Al-Nasser, Karim H. Alnasser, Kram Nseelt, Karim H. Alaassar

479 F.3d 1166 UNITED STATES of America, Plaintiff-Appellee, v. Karim HUSSEIN AL NASSER, aka Karim Hussein Al-Nasser, Karim H. AlNasser, Kram Nseelt, Karim H. Alaassar, Defendant-Appellant. No. 05-10466. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 3, 2006. Filed March 20, 2007. James Sun Park, Park Law Office, PLC, Phoenix, AZ, for the appellant. Gary M. Restaino, Assistant U.S. Attorney, Phoenix, AZ, for the appellee. Appeal from the United States District Court for the District of Arizona; Neil V. Wake, District Judge, Presiding. D.C. No. CR-03-01122-NVW. Before FERGUSON, TROTT, and KLEINFELD, Circuit Judges. Opinion by Judge Kleinfeld; Dissent by Judge Ferguson KLEINFELD, Circuit Judge. 1 This case raises issues regarding a vehicle stop and sentencing. We affirm. FACTS 2 A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through an Indian reservation, the Tohono O'odham Nation. He spotted a pickup truck around nine at night that he suspected was carrying illegal aliens, and stopped it. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that…

dissenting:

I agree with the majority concerning the general rule that a “person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained,” maj. op. at 1170 (quoting United States v. Mendenhall, 446 U.S. 544, 553 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980)); see also Terry v. Ohio, 392 U.S. 1 , 19 n. 16, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), but I disagree with its decision that A1 Nasser’s movement was not so restrained. “[Tjaking into account all of the circumstances surrounding the encounter” in this case, “the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 , 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988)) (internal punctuation omitted). The majority’s conclusion to the contrary is illogical and contravenes both Supreme Court and Ninth Circuit precedent.

I.

On the night of October 4, 2003, uniformed Border Patrol Agents Cortright and Spivey were patrolling a stretch of Federal Route 15 (“Route 15”), a…

Opinion by Judge Kleinfeld; Dissent by Judge Ferguson

This case raises issues regarding a vehicle stop and sentencing. We affirm.

FACTS

A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through an Indian reservation, the Tohono O’odham Nation. He spotted a pickup truck around nine at night that he suspected was carrying illegal aliens, and stopped it. It turned out that there were no illegal aliens in the *1168 truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called a tribal officer to come over and take charge of the violators. The other Border Patrol agent on the stretch of highway came over too.

Meanwhile, a sedan drove toward the area where the pickup truck and two Border Patrol vehicles were stopped. When the Border Patrol agent shined his flashlight at it so he would be seen, despite the darkness and his dark clothing, he saw people hiding in the back seat (he is six feet nine inches tall, and has a good view down toward the floor when a small sedan passes him and he shines his flashlight in). So the Border Patrol agent told the driver to stop the sedan and…