Argued and Submitted En Banc June 25, 2013.
[Copyrighted Material Omitted]
Gretchen Fusilier, Carlsbad, CA, for Defendant-Appellant.
Mark Yohalem (argued), Assistant United States Attorney; André Birotte, Jr., United States Attorney; Robert E. Dugdale, Assistant United States Attorney, Criminal Division Chief; Daniel Ackerman, Assistant United States Attorney, United States Attorney's Office, Riverside, CA, for Plaintiff-Appellee.
Appeal fro the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:09-cr-00024-VAP-1.
Before: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, STEPHEN REINHARDT, SIDNEY R. THOMAS, M. MARGARET McKEOWN, RONALD M. GOULD, JAY S. BYBEE, SANDRA S. IKUTA, MORGAN CHRISTEN, PAUL J. WATFORD and ANDREW D. HURWITZ, Circuit Judges.
GOULD, Circuit Judge:
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.
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 border, when he saw a red Ford F-150 pickup truck, traveling north in the far right lane. The truck was " traveling
faster than the flow of traffic and passing many cars," and it had Baja California license plates. He followed the truck and saw it make at least ten " erratic lane changes without signaling." Eventually, he lost sight of the truck " because it was moving so quickly and weaving in and out of traffic."
Agent Lopez radioed Border Patrol Agent Jeffery Hays, told him about the truck, and asked him to assist. Agent Hays, who was north of Agent Lopez, drove onto the interstate in a marked vehicle and tried to catch up to the truck. Agent Hays reached the truck just south of the Temecula Border Patrol Checkpoint, the northernmost checkpoint on Interstate 15. The truck was still driving in the far right lane, speeding at " well over" 90 miles per hour. The flow of traffic was about 70 or 80 miles per hour, and the speed limit was 70. Agent Hays saw the truck change lanes numerous times without signaling, causing vehicles behind it to brake.
As the two vehicles approached the checkpoint, the truck slowed to about 70 miles per hour and moved two lanes to the left, cutting off other vehicles. After passing through the checkpoint, Agent Hays, in his marked car, pulled alongside the truck, now two lanes to his left. The driver— later identified as Rufino Ignacio Valdes-Vega— looked straight ahead and did not make eye contact with Agent Hays. Agent Hays saw no other ...