Valdes-Vega

dissenting:

Let’s cut to the chase.

Border patrol agents stopped Valdes-Vega: because of his Hispanic appearance; because he was driving a clean Ford F150 pickup with Baja California plates, 70 miles north of the U.S.-Mexico border on a major, busy California interstate highway; because he was driving faster than the flow of traffic and not signaling before lane changes; and because he kept his eyes on the road in front of him and not on the border patrol agents driving in the lane to his right.

Driving a clean Ford F-150 pickup is not suspicious. Driving with Baja plates is not suspicious. Driving 70 miles north of the U.S.-Mexico border is not suspicious. Driving with eyes kept on the road ahead is not suspicious. Driving faster than the flow of traffic and not signaling before lane changes on a major, busy California interstate highway is not suspicious. Driving while having Hispanic appearance is not suspicious.

Driving without signaling lane changes and faster than the flow of traffic on a major, busy California interstate highway — not uncommon in California — is referred to by the majority as “perhaps one of the most important factors in the total circumstances here.”…

dissenting,

Although the majority is correct that United States v. Arvizu, 534 U.S. 266 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002), held that “[e]ven innocent, noncriminal acts can foster reasonable suspicion in the- total context,” Majority at 1080, it errs in ignoring the distinction between the innocent acts in this case and those in Arvizu . Not all acts are equal, and not all innocent acts are suspicious; Moreover, taken together, the acts observed here create a situation far less suspicious: Arvizu used a “primitive dirt road” commonly used to bypass a checkpoint, 534 U.S. at 269 , 122 S.Ct. 744 ; Valdes-Vega stayed on the interstate. Ar-vizu avoided eye contact with a law enforcement officer on an empty road; Valdes-Vega avoided eye contact on a busy highway. Id. at 275-76 , 122 S.Ct. 744 (finding that “failure to acknowledge a sighted law enforcement officer” is less “remarkable” when observed on a busy highway than on an empty dirt road). Ar-vizu’s passengers waved “oddly,” and with their knees elevated — a possible sign that *1082 their feet rested on contraband, id. at 276-77 , 122 S.Ct. 744 ; Valdes-Vega had neither waving passengers nor elevated knees. Arvizu turned…

We must decide whether border patrol agents permissibly stopped a vehicle on a highway linked to the border. On the one hand, border patrol agents must keep our country safe by curbing the smuggling of undocumented aliens and drugs. On the other, our nation values individual autonomy and privacy, values reflected in the Fourth Amendment. The United States Supreme Court has held that a roving border patrol can stop a vehicle for a brief investigatory stop based on an articulable reasonable suspicion of criminal activity. We must here decide whether border patrol officers’ stated reasons for stopping a vehicle were sufficient to permit the stop without offending the Fourth Amendment’s prohibition on unreasonable seizures. We hold that the facts and inferences articulated by the border patrol agents established reasonable suspicion that criminal activity was afoot, justifying the stop. We affirm the district court’s denial of the motion to suppress the evidence of cocaine found as a result of the stop.

I

Border Patrol Agent Luis Lopez was conducting surveillance in an unmarked vehicle on the shoulder of Interstate 15, about 70 miles north of the United States-Mexico…