
    Moises Diaz NIETO v. STATE of Alabama.
    CR-00-2528.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Rehearing Denied April 19, 2002.
    
      Mark Thompson Conradi, Birmingham, for appellant.
    Bill Pryor, atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   WISE, Judge.

Pursuant to a negotiated plea agreement, the appellant, Moisés Diaz Nieto, pleaded guilty to trafficking in marijuana, a violation of § 13A-12-231, Ala.Code 1975. The trial court sentenced the appellant to 11 years’ imprisonment; that sentence was split and he was ordered to serve 3 years’ imprisonment. In addition, the trial court ordered the appellant to pay a $50 assessment to the Crime Victims Compensation Fund, a $1000 assessment pursuant to § 13A-12-281, Ala.Code 1975, a $100 assessment pursuant to § 36-18-7(a), Ala.Code 1975, and a $25,000 fíne. This appeal followed.

The appellant contends that the trial court erred by finding that the “border-patrol agent” who stopped the appellant’s vehicle had reasonable suspicion to stop and search the vehicle. Specifically, the appellant argues that evidence obtained as a result of the search of his vehicle should be suppressed because, he says, no reasonable suspicion existed to stop the vehicle. We disagree.

In United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Supreme Court held:

“[0]fficers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.”

(Footnote omitted.)

When stopping a vehicle, border-patrol agents must consider (1) the vehicle’s proximity to the border; (2) the usual patterns of traffic on the particular road; (3) the agent’s previous experience with alien traffic; (4) recent illegal alien border crossings in the area; (5) aspects of the vehicle; (6) the agent’s training; and (7) characteristics of the person’s appearance. United States v. Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. 2574.

Because the facts of the instant case are not in dispute with regard to the appellant’s participation in trafficking in marijuana, we review de novo the trial court’s ruling with regard to the appellant’s motion to suppress and the trial court’s interpretation of the term “reasonable suspicion” as applied to the undisputed facts. See State v. Hill, 690 So.2d 1201 (Ala.1996); Barnes v. State, 704 So.2d 487 (Ala.Crim.App.1997).

At the appellant’s suppression hearing, Alabama border-patrol officer, Laurence Weinbrenner, testified that on June 13, 1995, he was stationed on Interstate 20 observing traffic when he saw a 1985 purple Chevy Blazer sport utility vehicle with heavily tinted glass and Texas tags approach his stationary location. He observed a Hispanic male in the driver’s seat.

Upon catching up to the vehicle in his marked border patrol sedan, Agent Wein-brenner observed the vehicle weaving in the right-hand lane of traffic. He attributed this pattern of driving to nervousness caused by his pursuit. The driver appeared to be stiff and rigid and he looked straight ahead. When his vehicle was parallel to the Blazer, Officer Weinbrenner observed the silhouette of a passenger in the front seat and observed a subject in the backseat duck in an apparent attempt to avoid detection.

Agent Weinbrenner also testified that in his 11 years’ experience as an agent with the border patrol, he has become very familiar with Interstate 20 as a popular route for smugglers of illegal aliens to transport their smuggling loads. He further testified that the route from Texas to the Carolinas was popular and that cities in Texas were a major source for staging smuggled aliens before their departure to a work site.

Based on the observations he made, Agent Weinbrenner stopped .the appellant’s vehicle. After speaking to the appellant in Spanish, Agent Weinbrenner determined that the appellant and his wife were Mexican nationals and their two children traveling in the backseat were United States citizens. The appellant consented to a search of the vehicle, as a result of which approximately 13 pounds of marijuana were detected and found inside the driver’s door by a drug-sniffing dog.

“Reasonable suspicion is a less demanding standard than probable cause.” Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, “ ‘reasonable suspicion exists only if the officer has “specific, particularized, and articulable reasons indicating that the person [stopped] may be involved in criminal activity.” ’ ” Owen v. State, 726 So.2d 745, 747 (Ala.Crim.App.1998) (quoting State v. Washington, 623 So.2d 392, 395 (Ala.Crim.App.1993)).

In a recent decision, United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), the Supreme Court addressed a similar suppression issue involving roving border patrols. In Arvizu, a border-patrol agent followed behind a minivan after receiving reports of activity on backroads drug smugglers typically used to circumvent border checkpoints. Based on the timing and not seeing other vehicles on the road, the agent proceeded to pull off the road, and he watched a minivan as it approached his vehicle.

The agent observed the minivan’s speed slow dramatically. As it passed, he observed an adult man driving, an adult woman in the front passenger seat, and three children in the back. The border-patrol agent then proceeded to follow the vehicle. The driver appeared stiff and nervous. He did not acknowledge the agent as the agent passed beside the minivan. The agent further observed that the knees of two of the children were raised, as if they were resting on cargo. Following a closer look, the children began to wave in an abnormal pattern at the agent as though they were being instructed. After stopping the vehicle, the agent searched the vehicle with the driver’s consent. He discovered approximately 128 pounds of marijuana in a black duffel bag. The driver moved to suppress the marijuana evidence, arguing that the agent did not have reasonable suspicion to stop the vehicle.

In upholding the lower court’s denial of Arivzu’s motion to suppress, the Supreme Court stressed the importance of proper enforcement of federal drug and immigration laws stating:

“Because the ‘balance between the public interest and the individual’s right to personal security,’ United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘ “may be afoot,” ’ United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)(quoting Terry [v. Ohio, 392 U.S. 1] at 30, 88 S.Ct. 1868 [, 20 L.Ed.2d 889 (1968]).
“... [W]e have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.”

Arvizu, 534 U.S. at 273, 122 S.Ct. at 750.

The Supreme Court’s analysis in Arvizu is applicable in the instant case. Before Agent Weinbrenner stopped the appellant, he made special note of the age of the vehicle — a 1985 Chevy Blazer; the Texas state tags; the heavily tinted windows; and the driving pattern of the vehicle. He also observed the rigid appearance of the driver and the sudden way the passenger in the backseat ducked after noticing that a border agent was near. Relying on knowledge gained through training and 11 years’ experience as a border-patrol agent, Weinbrenner suspected criminal activity was afoot, and he stopped the appellant.

Further, Weinbrenner testified that he knew Interstate 20 was a popular route for alien smugglers and that Texas was a major source for smuggled aliens. He also testified that older model cars were more likely to be used in smuggling because of the risk the vehicle would be forfeited if the driver was caught transporting illegal aliens. Agent Weinbrenner was able to cite “specific, particularized, and articula-ble” grounds, other than mere nervousness, for reasonably suspecting that the appellant was engaged in criminal activity. The trial court’s evaluation of the totality of the circumstances supported Agent Weinbrenner’s decision to stop the appellant’s vehicle based on reasonable suspicion. Therefore, the trial court did not err in denying the appellant’s motion to suppress.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, J., concur. SHAW, J., concurs in the result, with opinion. COBB, J., dissents, with opinion.

SHAW, Judge,

concurring in the result.

This is admittedly a difficult case, because we are called upon to “ ‘balance between the public interest and the individual’s right to personal security.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740, 750 (2002), quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). I agree with much of what Judge Cobb says in her dissent; however, I decline to join her special writing because I believe that it treads too heavily on the totality-of-the-circumstances analysis reaffirmed in Arvizu. In criticizing the analysis of the United States Court of Appeals for the Ninth Circuit, the Court in Arvizu noted:

“The court’s evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the ‘totality of the circumstances,’ as our cases have understood that phrase. The court appeared to believe that each observation by Stoddard that was by itself readily susceptible to an innocent explanation was entitled to ‘no weight.’ See 232 F.3d, at 1249-1251. Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], however, precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was ‘perhaps innocent in itself,’ we held that, taken together, they ‘warranted further investigation.’ 392 U.S., at 22, 88 S.Ct. 1868. See also [United States v.] Sokolow, [490 U.S. 1], at 9, 109 S.Ct. 1581[, 104 L.Ed.2d 1 (1989)] (holding that factors which by themselves were ‘quite consistent with innocent travel’ collectively amounted to reasonable suspicion).”

534 U.S. at 274-75, 122 S.Ct. at 751.

Judge Cobb is right, however, that the factual scenario underlying the trial court’s reasonable-suspicion determination in this case provides a far weaker basis than the one underlying the district court’s determination in Arvizu. However, the ultimate, and inevitably elusive, question is whether the facts presented here are at least sufficient to support the trial court’s finding that Officer Weinbrenner’s investigatory stop was reasonable under the circumstances. My decision to concur in the judgment turns on the following language in Arvizu, with special emphasis on the emphasized portion:

“When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. See, [United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ]. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person. Id., at 418, 101 S.Ct. 690. See also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (reviewing court must give ‘due weight’ to factual inferences drawn by resident judges and local law enforcement officers ). Although an officer’s reliance on a mere ‘ “hunch” ’ is insufficient to justify a stop, Terry [v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) ].
“Our eases have recognized that the concept of reasonable suspicion is somewhat abstract. Ornelas, supra, at 696, 116 S.Ct. 1657 (principle of reasonable suspicion is not a ‘ “finely-tuned standard]” ’); Cortez, supra, at 417, 101 S.Ct. 690 (the cause ‘sufficient to authorize police to stop a person’ is an ‘elusive concept’). But we have deliberately avoided reducing it to ‘ “a neat set of legal rules,” ’ Ornelas, supra, at 695-696, 116 S.Ct. 1657 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).”

534 U.S. at 273-74, 122 S.Ct. at 750-51, (emphasis added).

Based upon Officer Weinbrenner’s 11 years’ experience as a border-patrol agent; his knowledge concerning the apparent use of Interstate 20 through the Birmingham area as a popular route for smugglers of illegal aliens; and his personal observations — aging vehicle, Texas license plate, heavily-tinted windows, Hispanic driver, nervousness on the part of the driver, and the silhouette of a passenger in the backseat ducking in an apparent attempt to avoid being seen (it is my understanding from the record that Officer Weinbrenner could not tell at the time he decided to stop the vehicle that the subject in the backseat was a child) — I cannot conclude that the trial court erred in denying the appellant’s motion to suppress. To paraphrase the Court in Arvizu:

“A determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.... Undoubtedly, each of these factors alone is susceptible to innocent explanation, and some factors are more probative than others. Taken together, [I] believe they sufficed to form a particularized and objective basis for [Officer Weinbrenner’s] stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.”

534 U.S. at 277-78, 122 S.Ct. at 753.

COBB, Judge,

dissenting.

I agree with the majority’s recitation of the legal standards applicable in this case. However, I disagree with the majority’s interpretation of the standards and with the majority’s application of the law to the facts presented. I believe that the trial court erred when it denied Nieto’s motion to suppress, and I would reverse the judgment in this cause.

A review of the totality of the circumstances is required to determine whether Agent Weinbrenner had a “particularized and objective basis” for suspecting criminal activity. Appellate review in a case such as this one should be de novo. United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). The facts in Arvizu were that the appellant was in an area on the United States-Mexico border, “driving on an unpaved road in a remote area of southeastern Arizona.” Id. at 268, 122 S.Ct. at 747-48. The road was described as “very rarely traveled except for use by local ranchers and forest service personnel.” Id. at 269, 122 S.Ct. at 748. Smugglers “commonly” attempted to avoid a border-patrol checkpoint by traveling on the road, and agents knew that smugglers sometimes drove minivans. A magnetic sensor indicating passage of a vehicle on the road was triggered one afternoon, when border-patrol agents were preparing for a shift change and when the area would be unpatrolled. The agent who responded to the sensor had been told that the same sensor had gone off several weeks earlier and that the agent on duty “had apprehended a minivan using the same route and witnessed the occupants throwing bundles of marijuana out the door.” Id. at 270, 122 S.Ct. at 749. When the agent responded to the scene where the sensor had been triggered, he observed a minivan with two adults and three children. The minivan slowed from 50-55 miles per hour to 25-30 miles per hour as it approached the agent’s vehicle. The agent stated that the driver appeared stiff, and he did not look at the agent. He also observed that the knees of the children sitting in the backseat were “unusually high, as if their feet were propped up on some cargo on the floor.” Id. at 270, 122 S.Ct. at 749. The children, although facing forward, put their hands up at the same time and waved in an abnormal pattern for four to five minutes, as if they had been instructed to do so. The minivan abruptly turned onto a road that is normally traveled only by four-wheel-drive vehicles. The agent did not recognize this minivan as one of the local vehicles that agents encountered on patrol, and he knew it was unlikely that the minivan’s occupants were on a picnic outing, because no picnic grounds were accessible by that road. When the agent radioed for a registration check on the vehicle, he learned that it was registered to an address four blocks from the border, “in an area notorious for alien and narcotics smuggling.” Id. at 271, 122 S.Ct. at 749. The agent stopped the vehicle and, after the appellant gave his consent, searched the vehicle. A duffle bag under the feet of the children in the backseat contained marijuana, and another bag of marijuana was found behind the seat. Id. at 272, 122 S.Ct. at 750.

The Supreme Court upheld the denial of the appellant’s motion to suppress based on its review of the totality of the circumstances. The Court stated:

“[W]e hold that [Agent] Stoddard had reasonable suspicion to believe that respondent was engaged in illegal activity. It was reasonable for Stoddard to infer from his observations, his registration check, and his experience as a border patrol agent that respondent had set out from Douglas along a little-traveled route used by smugglers to avoid the 191 checkpoint. Stoddard’s knowledge further supported a commonsense inference that respondent intended to pass through the area at a time when officers would be leaving their backroads patrols to change shifts. The likelihood that respondent and his family were on a picnic outing was diminished by the fact that the minivan had turned away from the known recreational areas accessible to the east on Rucker Canyon Road. Corroborating this inference was the fact that recreational areas farther to the north would have been easier to reach by taking 191, as opposed to the 40-to-50-mile trip on unpaved and primitive roads. The children’s elevated knees suggested the existence of concealed cargo in the passenger compartment. Finally, for the reasons we have given, Stoddard’s assessment of respondent’s reactions upon seeing him and the children’s mechanical-like waving, which continued for a full four to five minutes, were entitled to some weight.”

United States v. Arvizu, 534 U.S. at 277, 122 S.Ct. at 752-53.

The facts in this case are more dissimilar from those in Arvizu than the majority has acknowledged in its opinion. Nieto was driving an older vehicle on an interstate highway near Birmingham, Alabama, hundreds of miles from the border between the United States and Mexico, which at once distinguishes this case from Arvizu. In this situation, the fact that the vehicle had Texas state tags was of little consequence. Agent Weinbrenner testified that the driver appeared to be of Hispanic descent, that the vehicle had heavily tinted windows, and that it had a Texas license plate. Nieto was not violating any criminal laws when he was stopped by the agent. Rather, the agent testified that all of the vehicle stops he made were “based on immigration purposes.” (R. 14.) Weinbrenner said he knew that Texas has “major source cities for smuggled aliens,” and that he had personal knowledge that Interstate 20 “is an extremely popular route for smugglers of illegal aliens.” (R. 8.) To find that these circumstances created a reasonable suspicion sufficient to justify a stop of this appellant, the agent and a majority of this Court are painting with far too broad of a brush. In Arvizu, the evidence indicated that the minivan was registered to a town four blocks from, the border “in an area notorious for alien and narcotics smuggling.” 534 U.S. at 271, 122 S.Ct. at 749. I find it unreasonable to attribute any suspicions to every vehicle registered in the state of Texas and traveling along a major interstate highway in Alabama. Moreover, the majority noted that the driver was weaving within the right-hand lane of traffic, which the agent attributed to the driver’s nervousness at being pursued by a border-patrol agent. I cannot agree that weaving within the right-hand lane of traffic, even when that factor is combined with others, supports a finding of reasonable suspicion of criminal activity. That the driver appeared stiff and rigid is likewise of little significance, because nervousness in the presence of a law-enforcement officer “and/or failure to make eye contact do not establish reasonable suspicion to believe that the person is engaged in criminal activity.” State v. Washington, 623 So.2d 392, 398 (Ala.Crim.App.1993). As the United States Supreme Court stated in Arvizu:

“We think it quite reasonable that a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona).

534 U.S. at 275-76, 122 S.Ct. at 752 (emphasis added).

I also do not find that a child in the backseat of a vehicle “ducking down” warrants suspicion that criminal activity is afoot. While I am aware that heavily tinted windows, particularly on an older model vehicle, might suggest that the driver wishes to conceal the interior, I am also aware that some vehicle owners, particularly those who live in states with warm climates, like Texas, tint their windows to deflect the sun’s rays.

Even when the allegedly suspicious factors are considered in their totality, as an appellate court is required to do, I cannot agree that Agent Weinbrenner had reasonable suspicion for suspecting that Nieto was engaged in criminal activity. I find the following analysis, which this Court quoted in an earlier case, highly relevant to this case:

“ ‘Nevertheless, we find that the factors cited by the district court in this case, e.g., being Mexican, having few pieces of luggage, being visibly nervous or shaken during a confrontation with a state trooper, or traveling on the interstate with Texas license plates (not yet a crime in Alabama), do not provide a minimal, particularized basis for a conclusion of reasonable suspicion on the part of Officer Guthrie. Even when considered together and in light of all the facts, such observations fail to suggest that the [occupants of the vehicle] were engaged in any criminal activity other than speeding on the highway. Neither, for that matter, do any of the other allegedly “suspicious” facts urged by the government, such as [the driver’s] looking away quickly as he passed the officer on the highway, the [defendants’] possessing valid San Antonio driver’s licenses, or the bare fact of the car being insured by a third party.’ ”
“[United States v. Tapia,] 912 F.2d [1367,] at 1370-71 [(11th Cir.1990)].”

State v. Washington, 623 So.2d 392, 397 (Ala.Crim.App.1993). Significantly, in United States v. Tapia, 912 F.2d 1367 (11th Cir.1990), and in Washington, law-enforcement officers stopped the defendants’ vehicles for speeding, and the reviewing courts held that the subsequent detentions were not supported by reasonable suspicion. In State v. Washington, we further stated:

“We also decline to accept the State’s suggestion that we consider the defendant to have been detained in a high crime area. Trooper Eller’s statement that ‘people haul[] drugs up and down the interstate’ is far from ‘evidence’ that the interstate is ‘an area ... known for crime.’ State’s brief at 18. As the Utah Supreme Court has observed, ‘[although the density of the traffic ... varies, travelers use the interstate highway[s] at all times of the day and night and at all times of the year.’ State v. Mendoza, 748 P.2d 181, 183-84 (Utah 1987). Tt seems unlikely that [drug traffickers] comprise [such] a significant portion of interstate traffic’ that we may categorize the interstates as high crime areas. Id. at 183.”

623 So.2d at 397.

None of the factors relied on by the majority are inherently suspicious, and all of the factors considered together do not establish reasonable suspicion. The factors amount to no more than a hunch, and a mere hunch is insufficient to justify a stop. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Having considered the totality of the circumstances and given due weight to the factual inferences drawn by the law enforcement officer,” Arvizu, 534 U.S. at 277, 122 S.Ct. at 752, I cannot agree that the agent’s decision to stop the appellant’s vehicle was based on reasonable suspicion. Nor do I believe that the facts presented in this case are as similar to those in Arvizu, as the majority appears to suggest. For all of the foregoing reasons, I believe that the trial court erred when it denied the motion to suppress. Accordingly, I dissent. 
      
      . The agent testified that the driver's weaving within the right-hand lane seemed to indicate either that the driver was nervous upon seeing the officer "and/or that the vehicle was in a state of disrepair.” (R. 6.)
     