                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                  No. 10-50249
                Plaintiff-Appellee,
                                              D.C. No.
                 v.                        5:09-cr-00024-
                                               VAP-1
RUFINO IGNACIO VALDES-VEGA,
             Defendant-Appellant.            OPINION


      Appeal from the United States District Court
          for the Central District of California
      Virginia A. Phillips, District Judge, Presiding

            Argued and Submitted En Banc
          June 25, 2013—Seattle, Washington

                Filed December 24, 2013

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.

               Opinion by Judge Gould;
              Dissent by Judge Pregerson;
              Dissent by Judge Reinhardt
2              UNITED STATES V. VALDES-VEGA

                           SUMMARY*


                          Criminal Law

    The en banc court affirmed the district court’s denial of a
motion to suppress evidence of cocaine found as a result of
border patrol agents’ stop of a vehicle on a highway linked to
the United States-Mexico border.

    The en banc court held that in light of the totality of the
circumstances, the two experienced border patrol agents, who
observed a truck with foreign plates driving in a suspicious
manner in an area frequented by smugglers, had a reasonable,
particularized basis for suspecting that the defendant was
smuggling contraband, justifying the stop.

    The en banc court explained that prior decisions holding
that certain factors are per se not probative or are per se
minimally probative do not now comply with Supreme Court
precedent.

    Dissenting, Judge Pregerson, joined by Judges Reinhardt
and Thomas, wrote that driving without signaling lane
changes and faster than the flow of traffic on a busy
California interstate highway, plus defendant’s Hispanic
appearance, plus his eyes on the road, plus his driving a clean
Ford F-150, plus Baja California plates, did not create a
reasonable suspicion that criminal activity was afoot.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. VALDES-VEGA                    3

    Dissenting, Judge Reinhardt, joined by Judges Pregerson
and Thomas, wrote that the majority errs in ignoring the
distinction between the innocent acts in this case and those in
United States v. Arvizu, 534 U.S. 266 (2002).



                         COUNSEL

Gretchen Fusilier, Carlsbad, California, 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, California, for
Plaintiff-Appellee.


                         OPINION

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
4            UNITED STATES V. VALDES-VEGA

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.

                              I

    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.
             UNITED STATES V. VALDES-VEGA                    5

     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 occupants in the truck, but he noticed the
truck’s older body style, clean appearance, and Baja
California plates.

    When Agent Hays turned on his lights to stop the truck,
Valdes-Vega moved immediately to the far right lane. But
Agent Hays thought that Valdes-Vega took longer than
normal to pull over onto the shoulder, and pulled over to a
narrow part of the highway. Once stopped, Valdes-Vega
consented to a search of his truck, and the officers found
about eight kilograms of cocaine.

    Valdes-Vega was charged with possession with the intent
to distribute five kilograms or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). He moved to
suppress the cocaine, contending that the agents’ observations
did not amount to reasonable suspicion that he was engaged
in smuggling and that the resulting stop was illegal. After an
evidentiary hearing, the district court denied the motion,
finding that the officers had reasonable suspicion to stop the
truck. Valdes-Vega entered a conditional guilty plea,
reserving his right to appeal the denial of his motion to
suppress the cocaine. This timely appeal followed. A three-
judge panel reversed the district court. We decided to rehear
the appeal en banc.
6            UNITED STATES V. VALDES-VEGA

                              II

    “We review reasonable suspicion determinations de novo,
reviewing findings of historical fact for clear error and giving
‘due weight to inferences drawn from those facts by resident
judges and local law enforcement officers.’” United States v.
Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (en banc)
(quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
We thus apply “a peculiar sort of de novo review,” United
States v. Arvizu, 534 U.S. 266, 278 (2002) (Scalia, J.,
concurring), slightly more circumscribed than usual, because
we defer to the inferences drawn by the district court and the
officers on the scene, not just the district court’s factual
findings. See Arvizu, 534 U.S. at 273, 277; Ornelas, 517 U.S.
at 699.

                              III

    Valdes-Vega contends that the agents’ stop of his vehicle
violated his Fourth Amendment right to be free from
unreasonable seizures. We hold that the stop was lawful and
that the district court properly denied the motion to suppress
the cocaine found as a result of the stop.

    Officers on roving border patrols, like the one at issue
here, may conduct “brief investigatory stops” without
violating the Fourth Amendment “if the officer’s action is
supported by reasonable suspicion to believe that criminal
activity may be afoot.” Arvizu, 534 U.S. at 273 (internal
quotation marks omitted); see also United States v. Brignoni-
Ponce, 422 U.S. 873, 884 (1975). “Reasonable suspicion is
defined as ‘a particularized and objective basis for suspecting
                UNITED STATES V. VALDES-VEGA                              7

the particular person stopped of criminal activity.’”1
Cotterman, 709 F.3d at 968 (quoting United States v. Cortez,
449 U.S. 411, 417–18 (1981)).

    The reasonable-suspicion standard is not a particularly
high threshold to reach. “Although . . . a mere hunch is
insufficient to justify a stop, 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.” Arvizu, 534 U.S. at 274 (citations
and internal quotation marks omitted); see also Brignoni-
Ponce, 422 U.S. at 881 (“The Fourth Amendment does not
require       a policeman who lacks the precise level of
information necessary for probable cause to arrest to simply
shrug his shoulders and allow a crime to occur or a criminal
to escape.” (quoting Adams v. Williams, 407 U.S. 143, 145
(1972))).     Reasonable suspicion is a “commonsense,
nontechnical conception[] that deal[s] with ‘the factual and
practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.’” Ornelas,
517 U.S. at 695 (quoting Illinois v. Gates, 462 U.S. 213, 231



  1
    In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that an
officer can stop and frisk a person when the officer “conclude[s] in light
of his experience that criminal activity may be afoot and that the persons
with whom he is dealing may be armed and presently dangerous.”
392 U.S. at 30. Since Terry the Supreme Court has made clear that “in
appropriate circumstances the Fourth Amendment allows a properly
limited ‘search’ or ‘seizure’ on facts that do not constitute probable cause
to arrest or to search for contraband or evidence of crime,” based on
Terry’s reasonable-suspicion standard. Brignoni-Ponce, 422 U.S. at 881.
And the Court has expressly applied this standard in reviewing vehicle
stops based on reasonable suspicion of smuggling. See Arvizu, 534 U.S.
at 273–74; Brignoni-Ponce, 422 U.S. at 880–84.
8            UNITED STATES V. VALDES-VEGA

(1983)). Protection of the public safety justifies such an
approach.

    When reviewing an officer’s reasonable suspicion, we
“must look at the ‘totality of the circumstances.’” Arvizu,
534 U.S. at 273; Cotterman, 709 F.3d at 970 (“It is not our
province to nitpick the factors in isolation but instead to view
them in the totality of the circumstances.”). “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.” Arvizu, 534 U.S. at 273
(citations and internal quotation marks omitted). It also
precludes a “divide-and-conquer analysis” because even
though each of the suspect’s “acts was perhaps innocent in
itself . . . taken together, they [may] warrant[] further
investigation.” Id. at 274. “A determination that reasonable
suspicion exists . . . need not rule out the possibility of
innocent conduct.” Id. at 277.

    The nature of the totality-of-the-circumstances analysis
also precludes us from holding that certain factors are
presumptively given no weight without considering those
factors in the full context of each particular case. Id. at 274.
Thus, prior decisions holding that certain factors are per se
not probative or are per se minimally probative do not now
comply with Supreme Court precedent. See id. at 276 (“To
the extent that a totality of the circumstances approach may
render appellate review less circumscribed by precedent than
otherwise, it is the nature of the totality rule.”). We may
conclude that “some factors [in a particular case] are more
probative than others,” id. at 277, but this evaluation cannot
be done in the abstract by divorcing factors from their context
in the stop at issue. “Each case must turn on the totality of
             UNITED STATES V. VALDES-VEGA                   9

the particular circumstances” in that case. Brignoni-Ponce,
422 U.S. at 885 n.10.

    In the context of border patrol stops, the totality of the
circumstances may include characteristics of the area,
proximity to the border, usual patterns of traffic and time of
day, previous alien or drug smuggling in the area, behavior of
the driver, appearance or behavior of passengers, and the
model and appearance of the vehicle. Brignoni-Ponce,
422 U.S. at 884–85. Not all of these factors must be present
or highly probative in every case to justify reasonable
suspicion. See id. And the facts must be filtered through the
lens of the agents’ training and experience. Id. at 885.

    Applying these settled standards to the stop of Valdes-
Vega’s truck, we conclude that the agents had an objective
and particularized suspicion that Valdes-Vega was “engaged
in wrongdoing.” Cortez, 449 U.S. at 418. The district court’s
factual findings—paraphrased in our summary of the
facts—were not clearly erroneous. See Ornelas, 517 U.S. at
699. Reviewing the totality of the circumstances, we
conclude that many of the facts found relevant by the district
court are highly probative in our view as well.

    Agent Lopez and Agent Hays had eight and eleven years
of experience as agents respectively, and both had significant
experience investigating alien and drug smuggling. Agent
Hays in particular had worked almost entirely at the
Temecula checkpoint. The location of the stop, even though
70 miles north of the border, was significant because it was
the northernmost (that is, the last) checkpoint on that
interstate. The agents also reported that Interstate 15 is
commonly used by smugglers coming from Mexico. The fact
that Valdes-Vega’s truck had Mexican license plates made
10           UNITED STATES V. VALDES-VEGA

the possibility that it had recently crossed the border
significantly more likely. And the border patrol agents noted
that the type of vehicle was significant because trucks are
suitable for carrying large amounts of contraband and make
it difficult for agents to see into the vehicle.

    Added to these factors is Valdes-Vega’s driving, perhaps
one of the most important factors in the total circumstances
here. Both agents saw the truck excessively speeding,
changing lanes frequently, weaving in and out of traffic,
cutting off other drivers, causing them to brake—“basically
an erratic driving pattern.” But Valdes-Vega’s driving
changed as he approached the checkpoint, which the agents
indicated is common among smugglers. He first slowed
down and then speeded up as if to get through the checkpoint
quickly. The agents noted that this behavior—the erratic
driving, the change in speed—could be evasive maneuvering.
Valdes-Vega’s argument that border patrol agents do not
enforce traffic laws misses the point. The erratic driving of
the truck showed a pattern that the experienced agents
recognized as common to smugglers.

    In sum, the facts show that two experienced border patrol
agents observed a truck with foreign plates driving in a
suspicious manner in an area frequented by smugglers. The
total circumstances garnered the attention of the agents.
These circumstances align with factors that the Supreme
Court has indicated may be significant in evaluating a roving
border patrol stop, and we conclude that they are probative
here. See Brignoni-Ponce, 422 U.S. at 884–85. In light of
the totality of the circumstances, giving due weight to the
agents’ experience and reasonable deductions, we hold that
the agents had a reasonable, particularized basis for
                UNITED STATES V. VALDES-VEGA                            11

suspecting Valdes-Vega of smuggling contraband. The stop
was supported by reasonable suspicion.2

    Valdes-Vega urges us to resist this conclusion because he
contends that innocuous factors remain so even when added
together. Zero plus zero equals zero, his argument runs. But
viewing the facts in the totality of the circumstances and
taking into account the agents’ training and experience, we
decline to second-guess the agents’ decision to stop the truck
for investigation. Even innocent, noncriminal acts can foster
reasonable suspicion in the total context. See Arvizu,
534 U.S. at 274. There is no need for an officer to rule out an
innocent explanation. See id. at 277; Cortez, 449 U.S. at 411,
417. This holds true even if it is far from certain that the
suspect is actually engaged in illegal activity. See Arvizu,


   2
     The dissent of Judge Pregerson, joined by Judges Reinhardt and
Thomas, asserts that the Border Patrol agents stopped the defendant
“because of his Hispanic appearance.” The agents did not testify to that,
and that was not among the factors relied on by the district court in
denying the defendant’s motion to suppress. Judge Pregerson’s dissent in
this respect goes beyond the record and assumes Valdes-Vega looks
stereotypically Hispanic. We do not rely on the supposed appearance of
defendant in our decision affirming the district court’s denial of the
motion to suppress, and we hold that there was reasonable suspicion
supporting the stop.

    The dissent of Judge Pregerson champions the very principle that
Arvizu precludes, arguing that each factor separately does not support
reasonable suspicion. Judge Pregerson’s position does not correctly assess
whether all circumstances taken together showed reasonable suspicion
when viewed through the lens of the experienced Border Patrol agents.
Moreover, for the reasons expressed in our opinion, we do not find
persuasive the attempt by Judge Reinhardt, in his separate dissent joined
by Judges Pregerson and Thomas, to argue that the full circumstances
were not suspicious, and thus to distinguish this case from the facts in the
Supreme Court’s unanimous Arvizu decision.
12           UNITED STATES V. VALDES-VEGA

534 U.S. at 274; see also United States v. Sokolow, 490 U.S.
1, 7, 10 (1989); Terry, 392 U.S. at 27. A series of innocent
acts may be enough for reasonable suspicion justifying an
investigatory stop, even though the circumstances amount to
far less than probable cause.

    We do not endorse stopping cars based on mere whim.
But Valdes-Vega’s behavior was not so innocuous as to
suggest that he was merely plucked from a crowd at random.
It was his speed and erratic driving—which the agents
thought fit the driving patterns of smugglers—that first
caused the officers to notice his truck. That separated
Valdes-Vega’s truck from the other cars in traffic that day
and separated Valdes-Vega from the population at large. To
those observations, officers added the host of facts and
inferences discussed above. Valdes-Vega was not just
stopped, for example, because he happened to be driving a
Ford truck, a fact that could describe many people. Cf. Reid
v. Georgia, 448 U.S. 438, 441 (1980). He was stopped based
on the whole scene observed by the agents over the course of
five to ten miles while his truck was traveling along a known
drug corridor not far from the border.

    Valdes-Vega fundamentally misapprehends our task in
review. We need not decide whether any single fact would be
enough to support suspicion because we are not called upon
to review single facts in isolation. We review the totality of
the circumstances, which here is adequate to show reasonable
suspicion.

     AFFIRMED.
             UNITED STATES V. VALDES-VEGA                   13

PREGERSON, Circuit Judge, with whom REINHARDT and
THOMAS, Circuit Judges, join, dissenting:

   Let’s cut to the chase.

    Border patrol agents stopped Valdes-Vega: because of his
Hispanic appearance; because he was driving a clean Ford F-
150 pickup with Baja California plates, 70 miles north of the
U.S.-Mexico border on a major, busy California interstate
highway; because he was driving faster than the flow of
traffic and not signaling before lane changes; and because he
kept his eyes on the road in front of him and not on the border
patrol agents driving in the lane to his right.

    Driving a clean Ford F-150 pickup is not suspicious.
Driving with Baja plates is not suspicious. Driving 70 miles
north of the U.S.-Mexico border is not suspicious. Driving
with eyes kept on the road ahead is not suspicious. Driving
faster than the flow of traffic and not signaling before lane
changes on a major, busy California interstate highway is not
suspicious. Driving while having Hispanic appearance is not
suspicious.

    Driving without signaling lane changes and faster than the
flow of traffic on a major, busy California interstate
highway—not uncommon in California—is referred to by the
majority as “perhaps one of the most important factors in the
total circumstances here.” Such driving, plus defendant’s
Hispanic appearance, plus his eyes on the road, plus his
driving a clean Ford F-150, plus the Baja plates, did not
create a reasonable suspicion that criminal activity was
14            UNITED STATES V. VALDES-VEGA

“afoot.” See United States v. Arvizu, 534 U.S. 266, 273
(2002) (quoting United States v. Sokolow, 490 U.S. 1, 7
(1989)).

     Therefore, I respectfully dissent.



REINHARDT, Circuit Judge, dissenting, with whom
PREGERSON and THOMAS, Circuit Judges, join:

    Although the majority is correct that United States v.
Arvizu, 534 U.S. 266 (2002), held that “[e]ven innocent,
noncriminal acts can foster reasonable suspicion in the total
context,” Majority at 11, it errs in ignoring the distinction
between the innocent acts in this case and those in Arvizu.
Not all acts are equal, and not all innocent acts are suspicious.
Moreover, taken together, the acts observed here create a
situation far less suspicious: Arvizu used a “primitive dirt
road” commonly used to bypass a checkpoint, 534 U.S. at
269; Valdes-Vega stayed on the interstate. Arvizu avoided
eye contact with a law enforcement officer on an empty road;
Valdes-Vega avoided eye contact on a busy highway. Id. at
275–76 (finding that “failure to acknowledge a sighted law
enforcement officer” is less “remarkable” when observed on
a busy highway than on an empty dirt road). Arvizu’s
passengers waved “oddly,” and with their knees elevated—a
possible sign that their feet rested on contraband, id. at
276–77; Valdes-Vega had neither waving passengers nor
elevated knees. Arvizu turned abruptly at the last place
possible to avoid a checkpoint, id. at 271; Valdes-Vega went
through the checkpoint. Finally, Arvizu’s trip corresponded
with a Border Patrol shift change, id. at 269, and Valdes-
Vega’s did not. While Arvizu indeed instructs us to avoid a
             UNITED STATES V. VALDES-VEGA                  15

“divide and conquer analysis,” id. at 274, it does not require
us to ignore the relative probative value of various innocent
acts, id. at 277 (“some factors are more probative than
others”), or to allow an officer to make a stop based on a
“mere hunch,” id. at 274.

     Therefore, for the reasons stated above and the reasons
stated in Judge Pregerson’s dissent, I also dissent.
