United States v. Argentino Purita , 442 F. App'x 351 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10483
Plaintiff - Appellee, D.C. No. 4:08-cr-01195-CKJ-
BPV-1
v.
ARGENTINO SALVADORE PURITA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted July 12, 2011 **
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT,*** District
Judge.
Defendant Argentino Salvadore Purita stands convicted of conspiring to
transport illegal aliens for profit, 8 U.S.C. § 1324(a)(1)(A)(v)(I), and of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Otis D. Wright II, United States District Judge the
Central District of California, sitting by designation.
transporting illegal aliens for profit, 8 U.S.C. §§ 1324(a)(1)(A)(ii), (a)(1)(B)(i).
Reviewing de novo whether there was reasonable suspicion to justify a stop and
reviewing for clear error the district court’s underlying factual findings, United
States v. Palos-Marquez, 591 F.3d 1272, 1274 (9th Cir.), cert. denied, 131 S. Ct.
339 (2010), we affirm.
An investigatory stop does not violate the Fourth Amendment "if the officer
has a reasonable suspicion supported by articulable facts that criminal activity
‘may be afoot.’" United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.
Ohio, 392 U.S. 1, 30 (1968)). Specifically, factors that may be considered to
determine whether an officer reasonably suspected that a defendant was
transporting illegal aliens include, but are not limited to: "(1) characteristics of the
area in which a vehicle is encountered; (2) proximity to the border; (3) usual traffic
patterns on the particular road; (3) previous experience with alien traffic; (4) recent
illegal border crossings in the area; (5) erratic or evasive driving behavior; (6)
aspects of the vehicle; and (7) the behavior or appearance of the driver." United
States v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir. 2002) (citing United States v.
Brignoni-Ponce, 422 U.S. 873, 884–85 (1975)).
In this case, border patrol agents first encountered Defendant’s minivan
about four miles from the international border. They knew that the road in
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question was a major smuggling artery that was used to evade checkpoints. The
minivan was traveling at night, a time when traffic on that road was ordinarily
light. See Diaz-Juarez, 299 F.3d at 1142 (holding that a defendant’s traveling in a
high-crime area at a time when vehicle traffic is unusual may support reasonable
suspicion (citing United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000))).
Moreover, the minivan was riding low in the rear, a mere 6 to 8 inches from the
ground. See, e.g., Brignoni-Ponce, 422 U.S. at 885 (holding that a vehicle’s
appearance of being "heavily loaded" may support a reasonable suspicion of illegal
smuggling). The agents saw no cargo, and the number of passengers was
insufficient to explain the additional weight. The agents saw only the driver, the
front-seat passenger, and one rear-seat passenger, who was riding in the middle
seat. Both agents considered the rear-seat passenger’s position to be suspicious
because, in their experience, smugglers sometimes put a person in the middle seat
in an attempt to explain the laden appearance of the vehicle. In addition, the
minivan traveled at just 4 to 5 miles per hour for approximately two minutes while
the agents were following it. See United States v. Rocha-Lopez, 527 F.2d 476,
477–78 (9th Cir. 1975) (holding that reasonable suspicion was supported in part by
the fact that the defendant, upon seeing law enforcement, slowed to 10 miles per
hour).
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The district court declined to rely on several other factors that aroused the
officers’ suspicion. But on de novo review we consider those factors relevant. For
instance, both officers testified that they saw condensation on the rear windshield
of the minivan which, in their experience, suggested that there were people in the
back of the car who were breathing heavily. Additionally, after discovering that
the car was registered to Alliance Corporation, the agents thought the minivan was
probably a rental car. Both agents testified that, in their experience, local
smuggling organizations use rental vehicles to avoid seizure of their personal
vehicles. See United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997)
(holding that the defendant’s use of a rental car supported the reasonable suspicion
that he was smuggling illegal aliens). Finally, the agents noticed that the vehicle
did not "bounce" much, which, in their experience, meant that the vehicle was
heavily loaded.
Although Defendant offers potential, innocent explanations for each of the
facts considered by the agents, the totality of the circumstances supported a
reasonable suspicion that the minivan was being used to transport illegal aliens.
See Diaz-Juarez, 299 F.3d at 1141 ("Individual factors that may appear innocent in
isolation may constitute suspicious behavior when aggregated together." (citing
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Sokolow, 490 U.S. at 9-10)). We therefore affirm the district court’s denial of
Defendant’s motion to suppress.
AFFIRMED.
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