United States v. Josie Arvizu ( 2019 )

FILED
NOT FOR PUBLICATION
OCT 28 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10285
Plaintiff-Appellee, D.C. No.
4:17-cr-01056-JGZ-BPV-1
v.
JOSIE ARVIZU, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-10296
Plaintiff-Appellee, D.C. No.
4:17-cr-01056-JGZ-BPV-2
v.
ERIKA HERNANDEZ-NUNEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted October 23, 2019**
Pasadena, California
Before: KLEINFELD and CALLAHAN, Circuit Judges, and RESTANI,*** Judge.
Defendants-Appellants, Josie Arvizu and Erika Hernandez-Nunez
(collectively, “Defendants”), appeal from the district court's denial of their motion
to suppress evidence obtained as a result of a stop of their vehicle, during which
illegal aliens were discovered in the trunk. Defendants entered conditional plea
agreements to the transport of illegal aliens for profit under 8 U.S.C. §§
1324(a)(1)(A)(v)(i), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i). They reserved their
rights to appeal the denial of their motion to suppress. We have jurisdiction under
28 U.S.C. § 1291, and we affirm the district court decision.
We review “de novo the district court’s ruling on a motion to suppress and
for clear error the district court’s underlying findings of fact.” United States v.
Evans, 786 F.3d 779, 784 (9th Cir. 2015). Reasonable suspicion determinations
are reviewed de novo, findings of historical fact are reviewed for clear error and
due weight is given “to inferences drawn from those facts by resident judges and
local law enforcement officers.” United States v. Valdes-Vega, 738 F.3d 1074,
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
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1077 (9th Cir. 2013) (internal citation omitted). “We thus apply ‘a peculiar sort of
de novo review,’ United States v. Arvizu, 534 U.S. 266, 278 (2002) (Scalia, J.,
concurring), slightly more circumscribed than usual, because we defer to the
inferences drawn by the district court and the officers on the scene, not just the
district court's factual findings.” Id.A law enforcement officer may “stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989). In determining
whether there was reasonable suspicion, a court looks at the totality of the
circumstances. United States v. Cortez, 449 U.S. 411, 417 (1981). “The
reasonable-suspicion standard is not a particularly high threshold to reach.”
Valdes-Vega, 738 F.3d at 1078. “Reasonable suspicion is a commonsense,
nontechnical conception that deals with the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.” Id.
(internal quotation marks and citations omitted).
Here, a number of facts support the district court’s finding of reasonable
suspicion for stopping Defendants’ car. The San Miguel West Church is
surrounded by the dense Vamori Wash, which is known to provide coverage for
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illegal aliens crossing the border. There were recent incidents of alien smuggling
in the area of the church. Defendants’ car was unknown to the agents, was
registered in Tucson, more than 90 minutes away, and had crossed the border from
Mexico less than 72 hours earlier. The car only stayed at the church for a short
period of time. Leaving the church the car drove faster than local traffic, kicking
up dust, and, contrary to the practice of local drivers, slowed down when the agent
began to follow it. The agent “observed a disturbance in the dirt on the vehicle’s
trunk, consistent with handprints previously found on the trunks of vehicles
transporting illegal aliens in the trunk.” These factors created a reasonable
suspicion even if, as Defendants contend, there could be innocent reasons for each
of them. The totality of the circumstances supports the finding of reasonable
suspicion. See United States v. Diaz-Juarez, 299 F.3d 1138 (9th Cir. 2002); United
States v. Guzman-Padilla, 573 F.3d 865 (9th Cir. 2009).
Defendants’ convictions are AFFIRMED.
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