872 F. 2d 431 - United States v. W Knighton

MEMORANDUM**

Knighton appeals his judgment of conviction following entry of a conditional guilty plea to one count of possession with intent to distribute approximately 513 pounds of marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(vii). Knighton challenges the district court's denial of his motion to suppress the marijuana seized from his truck. Knighton contends that Estrada, the officer who stopped his vehicle, lacked founded suspicion of criminal conduct. We conclude that the totality of the surrounding facts and circumstances provided Estrada with founded suspicion of criminal conduct to initiate the stop, and we affirm.

* Whether there was founded suspicion to justify an investigatory stop is a mixed question of law and fact which we review de novo. United States v. Thomas, 844 F.2d 678, 680 (9th Cir.1988).

A law enforcement officer may make a brief investigatory stop of a moving vehicle upon less than probable cause if, under the totality of the circumstances, the officer is aware of articulable facts which support a reasonable or founded suspicion of criminal conduct. Id.; United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir.1985). Founded suspicion of criminal conduct exists when an officer is aware of specific articulable facts, that, together with rational inferences and deductions from those facts, reasonably warrant 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).

The assessment leading to such founded suspicion is based on the totality of the circumstances, which includes various objective observations, consideration of the modes or patterns of operation of certain kinds of lawbreakers, and information from police reports, while also taking into account inferences and deductions that may be apparent to trained law enforcement officers. United States v. Cortez, 449 U.S. 411, 419-20 (1981) (founded suspicion where stop based on footprints and tire tracks made at a certain time of day at an isolated location known to be a crossing for illegal aliens); see also Thomas, 844 F.2d at 681-82 (founded suspicion based on location of stop to scene of alleged passing of counterfeit money, brief lapse of time between police broadcast and stop and suspect's car leaving the parking lot via the lot's entrance); Guam v. Ichiyasu, 838 F.2d 353, 356 (9th Cir.1988) (founded suspicion where officer spotted elderly well-dressed man in taxi at an unusual hour and location and after hearing the same description on police radio); Magana, 797 F.2d at 782 (founded suspicion where officer observed truck of kind typically used in transporting illegal aliens on the main road used for such smuggling activities with seven occupants of Mexican appearance, six of whom had appearances distinct from the driver); Corral-Villavicencio, 753 F.2d at 789 (founded suspicion where officers observed a vehicle uncommon to area driving at an unusual hour to and from a picnic area, six-tenths of a mile from the border, known to be used for frequent contraband pickups, and the time between entrance and exit from area was normal time for contraband pickup operation).

An officer need not rule out the possibility of innocent behavior before initiating a stop. Thomas, 844 F.2d at 682; Ichiyasu, 838 F.2d at 355. Conduct that alone may appear innocent can be suspicious when viewed in the context of other information or surrounding circumstances known by police. Ichiyasu, 838 F.2d at 355-56.

In the present case, we review the facts and surrounding circumstances from Estrada's perspective, an experienced law enforcement officer. Upon review of all the factors present up to the time when Estrada signaled Knighton to stop his vehicle, we conclude that the stop was based upon specific articulable facts, which, together with rational inferences and deductions from those facts, amply provided founded suspicion of criminal conduct to initiate Estrada's warrantless investigatory stop of Knighton's vehicle.

Liza Manuel is a resident of the village of Nolic, located in an isolated area in the Tohono O'odham Indian Reservation and consisting of nine houses reached by a road not normally traveled by non-residents of the reservation. She knows the community's inhabitants. Manuel reported to officer Lambert Cross, a neighbor and a 60-year resident of Nolic, that she had seen two unfamiliar vehicles, Knighton's pickup truck and a Bronco, driving back and forth between the highway and the wash throughout the preceding night and in the early morning hours. Cross knew the wash to be a site for drug and alien smuggling. As Manuel was speaking to Cross, she saw one of the two vehicles and pointed it out to Cross. Cross then went to the wash and saw tire marks from more than one vehicle. Upon leaving the wash, Cross saw the same two vehicles traveling in tandem on the highway leading to Tucson.

Later that day, Cross stopped at the Sells Police Department where he reported what he had seen at the wash and what Manuel had told him. Herman Pablo, a jailer, also reported to Cross that he had seen the same two vehicles at the wash area that morning. Upon leaving the police station, Cross again saw the same two vehicles traveling in tandem towards Tucson. Cross radioed this information to the Sells police, followed the vehicles, and asked that an officer investigate the wash area. Officer Stanley, an experienced tracker, went to the wash and found the footprints and tire tracks of two vehicles. He concluded that they were only a few hours old and that the depth of the footprints was suggestive of loading activity.

Meanwhile, officer Estrada already knew through the police radio that both vehicles had been seen in a remote area where marijuana stashes had been picked up in the past and that other officers were following the vehicles. Estrada was ordered to try and intercept the vehicles. As the vehicles entered Tucson, Estrada saw four to five individuals in the Bronco whom he believed to be illegal aliens. Furthermore, as Estrada followed the vehicles, and before he signaled them to stop, he saw bundles typical of marijuana bundles in the back of Knighton's pickup truck.

Founded suspicion to support the stop of Knighton's vehicle, therefore, was based, not only on the significantly greater evidence linking Knighton's pickup truck to the loading activity in the known isolated smuggling area, but also on the important fact that Estrada actually saw what appeared to be bales of marijuana in Knighton's pickup truck. Thus, we find no error in the district court's denial of Knighton's motion to suppress.

AFFIRMED.