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876 F2d 897 United States v. Fernando G

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
FERNANDO G., Defendant-Appellant.

No. 88-1136.

United States Court of Appeals, Ninth Circuit.

Submitted* April 26, 1989.
Decided June 5, 1989.

Before CHOY, ALARCON and CANBY, Circuit Judges.

1

MEMORANDUM**

2

Fernando G., a juvenile, appeals from the judgment entered upon his conditional plea, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, to a charge of juvenile delinquency based upon his possession with intent to distribute 50 to 100 kilograms of marijuana. He seeks reversal of the order denying his motion to suppress on the following grounds:

3

One. The Border Patrol Agents did not have a founded suspicion to stop the car he was driving.

4

Two. The Border Patrol Agents did not have probable cause to search his car.

5

We address each of these issues and the facts pertinent thereto under separate headings. We affirm because we have concluded that founded suspicion justified the stop and probable cause existed for the search.

6

* FOUNDED SUSPICION JUSTIFIED THE STOP

7

We review the record independently, without deference to the district court's conclusion, to determine whether founded suspicion justified a stop. United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988).

8

The fourth amendment prohibits the stopping of a vehicle to question an occupant unless there is a founded suspicion of criminal conduct. Thomas, 863 F.2d at 625. Founded suspicion exists when an officer is aware of specific articulable facts, that, together with rational inferences drawn from them, reasonably warrant a suspicion that the person to be detained has committed or is about to commit a crime. United States v. Magana, 797 F.2d 777, 780 (9th Cir.1986). In evaluating whether a founded suspicion exists, we must consider the totality of the circumstances. Thomas, 863 F.2d at 625.

9

On December 17, 1987, Border Patrol Agent Frank Bustamente received a report from his agency's radio operator that a Border Patrol unit in Nogales had seen two cars driving in tandem. One of the cars was stopped by the officers. The other car drove off. The vehicle that had been stopped was searched. The car contained marijuana. The vehicle that was not stopped was described as a tan Dodge compact, bearing license number EEL284. The driver was a juvenile.

10

Agent Bustamente was told that on the previous day, Agent Calhoun had observed two vehicles driving in tandem. He stopped one vehicle. The other drove away quickly. The car was a tan Dodge. It was driven by a juvenile. The license plate contained the number "284."

11

Upon receiving this information through official channels, Agent Bustamente and his partner drove towards Nogales in a marked patrol car. Three to five miles south of Valencia, Arizona, the officers saw a tan car with license plate number EEL284. The officers stopped the vehicle.

12

These facts established a founded suspicion that the driver of the vehicle was involved in criminal activity. In United States v. Munoz, 604 F.2d 1160, 1161 (9th Cir.1979), the officers saw two cars traveling in tandem. After the first car stopped, the officers observed that it contained illegal aliens. We held in Munoz that these facts demonstrated a founded suspicion that the second car was involved in criminal activity. Id.

13

In the instant matter, Agent Bustamente was not only aware at the time of the stop that the first car contained marijuana, he had also been informed of the suspicious activities involving the same vehicle on the day before. We are persuaded that a founded suspicion existed, based on particularized facts, to stop Fernando G's vehicle.

II

PROBABLE CAUSE EXISTED TO SEARCH THE CAR

14

After stopping the tan dodge, Agent Bustamente approached the car and identified himself as a Border Patrol Agent. Fernando G. was the only person in the car. Fernando G. was asked for identification. He replied that he had none.

15

Agent Bustamente asked Fernando G. for the keys to the car. Fernando G. gave him the keys. Agent Bustamente opened the trunk. The trunk contained marijuana.

16

A vehicle may be searched without a warrant if the search is reasonable in scope and supported by probable cause. United States v. Grandstaff, 813 F.2d 1353, 1358 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 119 (1987). Probable cause exists when the facts and circumstances within the officer's knowledge are sufficient to cause a prudent person to believe that the suspect has committed or is about to commit a crime. Michigan v. De Fillippo, 443 U.S. 31, 37 (1979). We determine whether probable cause exists independently without deference to the district court's ruling. Grandstaff, 813 F.2d at 1355.

17

Founded suspicion justifying a stop may ripen into probable cause to search because of the officer's observation of additional facts and circumstances. United States v. Avalos-Ochoa, 557 F.2d 1299, 1303 (9th Cir.), cert. denied, 434 U.S. 974 (1977). In Ortiz-Barraza v. United States, 512 F.2d 1176, (9th Cir.1975), we held that founded suspicion to stop a camper ripened into probable cause to search it where the defendant had no identification in his possession and the driver was travelling close to the Mexican border suggesting the possibility of the smuggling of contraband. Id. at 1180-81.

18

In the matter before this court, the officers had received information through official channels that Fernando G. had been driving in tandem with another vehicle near the Mexican border. He drove off when it was stopped. The other car was found to contain marijuana. Upon being stopped, Fernando G. had no identification. His failure to identify himself corroborated and confirmed the incriminating facts and circumstances known to the officer. Considering the totality of these circumstances, we conclude that probable cause existed to believe that Fernando G. was an accomplice in the use of an automobile to smuggle marijuana. Accordingly, the search of the trunk was reasonable under the fourth amendment.

19

Because we conclude that probable cause existed to search the trunk of the car, we do not reach the government's contention that the record supports the district court's finding that Fernando G. consented to the officer's conduct. The motion to suppress was properly denied.

20

AFFIRMED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed.R.App.P. 34(a), Ninth Circuit Rule 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3