                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-27-2009

USA v. Mathurin
Precedential or Non-Precedential: Precedential

Docket No. 07-4576




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                                         PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 07-4576


          UNITED STATES OF AMERICA

                           v.

             DOMIQUITE MATHURIN,

                           Appellant


On Appeal from the District Court of the Virgin Islands
               Division of St. Thomas
               (D.C. No. 06-cr-00039)
    District Judge: Honorable Curtis V. Gomez


              Argued December 9, 2008
           Before: FISHER, JORDAN and
            STAPLETON, Circuit Judges.

               (Filed: March 27, 2009)
Jesse A. Gessin (Argued)
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie
St. Thomas, VI 00804

Thurston T. McKelvin
Office of Federal Public Defender
P.O. Box 223450
Christiansted, VI 00822
       Attorneys for Appellant

Delia L. Smith (Argued)
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie
St. Thomas, VI 00802-6924
       Attorneys for Appellee




                OPINION OF THE COURT


FISHER, Circuit Judge.

       Domiquite Mathurin was convicted by a jury of
possession with intent to distribute cocaine, while aiding and
abetting his co-defendant, Francisco Perez-Polanco, and
unlawfully using cellular phones to facilitate possession with

                              2
intent to distribute cocaine. On appeal, he contends that the
District Court committed reversible error in denying in part his
motion to suppress cocaine discovered during a stop of a vehicle
in which he was a passenger. Specifically, Mathurin argues that
the law enforcement officers lacked reasonable suspicion under
the Fourth Amendment, as needed for a valid investigatory stop
of the vehicle in which he was traveling, because the facts the
officers relied upon, under the totality of the circumstances,
failed to eliminate a substantial portion of innocent travelers.
Because we conclude that the officers possessed sufficient
information to give rise to a reasonable suspicion, we will affirm
Mathurin’s conviction.

                                I.

                      A. Factual History

       At approximately 11:00 a.m. on June 15, 2006, Hillary
Hodge, Jr. (“Agent Hodge”), the resident agent in charge for the
United States Department of Homeland Security (“DHS”),
Immigration and Customs Enforcement (“ICE”) Office of
Investigations, received a call from a DHS Customs and Border
Protection (“CBP”) aircraft, alerting him that a “suspicious
vessel” had departed Culebra, Puerto Rico and was heading for
Crown Bay Marina (“Marina”) in St. Thomas, United States
Virgin Islands. CBP described the boat as suspicious because
“it was a yolla-type vessel, low to the water line, painted
probably blue in color, two outboard engines, no appearance of
any recreational use . . . , and with only a single occupant on
board.”


                                3
        Agent Hodge directed two agents in his local ICE office,
Special Agent Michael Aguilar (“Agent Aguilar”) and Task
Force Agent Shawn Querrard, to go to the Marina to look for the
vessel, and then contacted the Drug Enforcement Administration
(“DEA”) resident agent in charge in St. Thomas to seek
assistance in locating the boat and person on board. The ICE
agents located the boat matching the tipster’s description docked
in a slip at the Marina and maintained surveillance on it. CBP
Inspector Richard Peak joined them shortly thereafter. The
agents questioned Marina workers and learned that a man named
Francisco Perez-Polanco 1 had arrived in the boat, checked into
the Marina that day, rented the slip until midnight that evening
for approximately $43 or $45, requested a taxi to the nearest
hotel, and carried no luggage.

       The agents called local area hotels and located Perez-
Polanco at the Island Beachcomber Hotel (“Hotel”). After
serving the Hotel with a DEA administrative subpoena, the
agents further learned that Perez-Polanco paid approximately
$116 for the room in cash, checked in that day, planned to check
out the following day, and occupied room 207. The agents
researched Perez-Polanco’s criminal record and found that he
was arrested in Puerto Rico on April 26, 2004, for possession of


       1
        Marina workers informed the agents that a man named
“Francisco Perez” had arrived in the vessel. One agent showed
a photograph of Perez-Polanco to the Marina personnel, who
they identified as the same man who arrived that morning in the
yolla and rented the Marina slip. The boat was registered in
Perez-Polanco’s father’s name, Francisco Perez-Santos.

                               4
approximately six kilograms of cocaine. In September 2004, he
was “detained in the seizure of approximately $260,000,” and
was also arrested in April 2005 for aggravated assault.

       The agents established surveillance on the hotel room
because, as Agent Aguilar later testified, Perez-Polanco was a
“known drug trafficker” and they believed, based on their
experience in St. Thomas, that “a drug transaction was
imminent.” After several hours of surveillance, the agents
noticed Mathurin arrive at the Hotel around 7:30 p.m. in a green
Toyota 4Runner with Dionicio Mercedes. Mathurin exited the
vehicle with a light-colored plastic bag, entered Perez-Polanco’s
hotel room, exited it a few minutes later without the plastic bag,
and left the Hotel in the 4Runner. At around 9:30 p.m., the
agents observed the same 4Runner arrive at the Hotel again.
Mathurin exited the vehicle carrying a dark-colored plastic bag
and entered Perez-Polanco’s hotel room. Mathurin exited the
room alone a few minutes later without the plastic bag, and
started to return to the vehicle. Shortly thereafter, Perez-
Polanco exited the hotel room with a small tan backpack on his
back. However, before proceeding toward the parking lot, he
paused to look around, then headed to the same 4Runner,
leaving some distance between Mathurin and himself. Mathurin
and Perez-Polanco both got into the 4Runner.

       The 4Runner left the Hotel parking lot with Mercedes
driving, heading in the direction of the Marina. The agents
stopped the vehicle and ordered all three men out of the car.
Perez-Polanco fled on foot from the rear seat of the vehicle.
The officers arrested Mathurin and Mercedes, and later
apprehended Perez-Polanco. The agents found a tan backpack

                                5
in the back seat of the 4Runner, which contained 2.2 kilograms
of a substance that tested positive for cocaine.

                    B. Procedural History

       On July 6, 2006, a grand jury returned a three-count
indictment against Mathurin and his codefendants. Count one
charged Mathurin with possessing with intent to distribute 2.2
kilograms of cocaine, while aiding and abetting Perez-Polanco,
in violation of 18 U.S.C. § 2, and 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii), and count three charged him with using cellular
phones to facilitate possession with intent to distribute cocaine
in violation of 21 U.S.C. § 843(b) and (d)(1). Count two
charged Perez-Polanco with violating 21 U.S.C. § 843(b) and
(d)(1) as well.

        Mathurin filed a motion to suppress the evidence
obtained from the search of the 4Runner and the statements he
made to law enforcement agents following his corresponding
arrest and interrogation. The District Court held a hearing on
this motion and denied Mathurin’s motion to suppress the
cocaine found in the 4Runner, finding that the agents had
reasonable suspicion to stop the vehicle to “confirm or dispel
their suspicion that [Perez-]Polanco was engaged in criminal
activity.” The agents lawfully arrested Perez-Polanco outside
the 4Runner as he attempted to flee, and therefore legally
discovered the cocaine in the rear seat as part of a search




                               6
incident to Perez-Polanco’s arrest.2 The agents would have had
probable cause to arrest Mathurin at that point, making the
cocaine admissible against him as well.

       As a result, Mathurin proceeded to trial, and a jury found
him guilty of both counts on which he was tried. On
November 20, 2007, the District Court sentenced Mathurin to 78
months’ imprisonment with credit for time served. Mathurin
filed this timely appeal of his conviction, challenging the


       2
         The District Court held that Mathurin’s initial arrest was
illegal because the agents lacked probable cause to arrest
Mathurin at the time the 4Runner was stopped. Therefore, it
suppressed all statements Mathurin made in custody as the fruit
of the poisonous tree. It held that the agents performed a legal
warrantless search of the 4Runner incident to Perez-Polanco’s
lawful arrest, which is when they discovered the cocaine in the
rear seat. See New York v. Belton, 453 U.S. 454, 461 (1981).
The District Court reasoned that there was no causal connection
between Mathurin’s arrest and the agents’ subsequent discovery
of the evidence, see Brown v. Illinois, 422 U.S. 590, 601-04
(1975), and that the main illegality, i.e., Mathurin’s arrest, was
not the “but for” cause of the agents’ discovery of the cocaine,
see United States v. Mosley, 454 F.3d 249, 253-59 (3d Cir.
2006). The District Court ultimately held that there was no
necessary correlation between Mathurin’s arrest and the cocaine
discovery, and therefore refused to suppress the cocaine as to
Mathurin as the product of his illegal arrest. Mathurin does not
argue on appeal that the seizure of the cocaine amounted to the
fruit of the poisonous tree.

                                7
District Court’s denial of his motion to suppress the cocaine
found in the 4Runner.

                               II.

        The District Court exercised jurisdiction over this case
pursuant to 18 U.S.C. § 3231 and 48 U.S.C. § 1612. We have
jurisdiction over Mathurin’s appeal pursuant to 28 U.S.C.
§ 1291 and 28 U.S.C. § 1294(3). In considering the District
Court’s denial of Mathurin’s motion to suppress, we review the
Court’s underlying factual findings for clear error, and we
exercise plenary review over its application of the law to those
facts. United States v. Whitted, 541 F.3d 480, 484 (3d Cir.
2008); United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002).

                              III.

        The Fourth Amendment prohibits “unreasonable searches
and seizures,” and searches without a warrant are presumptively
unreasonable. U.S. Const. amend. IV;3 Horton v. California,
496 U.S. 128, 133 (1990). However, under the exception to the
warrant requirement established in Terry v. Ohio, 392 U.S. 1
(1968), the Supreme Court has held that “police can stop and
briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that


       3
        The Fourth Amendment applies in the U.S. Virgin
Islands under the Revised Organic Act of 1954. See 48 U.S.C.
§ 1561 (“The right to be secure against unreasonable searches
and seizures shall not be violated.”).

                               8
criminal activity ‘may be afoot,’ even if the officer lacks
probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry, 392 U.S. at 30). Further, an officer may conduct
an investigatory stop of a moving vehicle if he has reasonable
suspicion that its passengers are engaged in criminal activity.
Ornelas v. United States, 517 U.S. 690, 693 (1996); United
States v. Hensley, 469 U.S. 221, 226-27 (1985).

        Reasonable suspicion is just that: suspicion that is
reasonably based on the totality of the facts and circumstances.
It is a belief that has been defined as “‘a particularized and
objective basis’ for suspecting the person stopped of criminal
activity.” Ornelas, 517 U.S. at 696 (quoting United States v.
Cortez, 449 U.S. 411, 417-18 (1981)). “The principal
components of a determination of reasonable suspicion . . . will
be the events which occurred leading up to the stop or search,
and then the decision whether these historical facts, viewed from
the standpoint of an objectively reasonable police officer,
amount to reasonable suspicion . . . .” Id. Officers may base
their reasonable suspicion on less reliable information than that
needed to show probable cause. Alabama v. White, 496 U.S.
325, 330 (1990).

       To assess whether reasonable suspicion existed “that the
particular individual being stopped [wa]s engaged in
wrongdoing,” courts look to “the totality of the circumstances”
from the viewpoint of law enforcement officers, which involves
dealing not “with hard certainties, but with probabilities.”
Cortez, 449 U.S. at 417-18. Though the individual factors
giving rise to reasonable suspicion may be innocent in isolation,
together they “must serve to eliminate a substantial portion of

                               9
innocent travelers.” Karnes v. Skrutski, 62 F.3d 485, 493 (3d
Cir. 1995). Law enforcement officers may “draw on their own
experience and specialized training to make inferences from and
deductions about the cumulative information,” but must act on
more than “a mere ‘hunch’” to meet the reasonable suspicion
standard for their stop. United States v. Arvizu, 534 U.S. 266,
273-74 (2002) (quoting Terry, 392 U.S. at 27).

       The sole issue in the instant appeal is whether the agents
had reasonable suspicion to seize Mathurin when they pulled
over the 4Runner in which he was a passenger for an
investigatory stop. The Government asserts that the following
facts gave the agents reasonable suspicion that Mathurin and
Perez-Polanco were involved in drug trafficking activity: First,
a resident agent at the St. Thomas ICE office received a tip from
a CBP aircraft that a suspicious boat was approaching St.
Thomas, which matched the description of the boat that actually
arrived at the Marina. Second, Perez-Polanco rented a Marina
slip only until midnight, made a hotel reservation for one night,
and carried no luggage. Third, Perez-Polanco was operating the
vessel and had previously been arrested with large amounts of
cocaine and cash. Fourth, Mathurin entered Perez-Polanco’s
hotel room twice in the course of two hours, leaving a plastic
bag behind each time. Finally, both men left the hotel room
around the same time, but separately, and, after Perez-Polanco
engaged in what the agents perceived to be countersurveillance,
drove away together from the Hotel in a 4Runner in the
direction of the Marina. Mathurin argues that these factors as a
whole fail to rise to a reasonable suspicion. We will examine
the factors separately to address their individual significance,


                               10
and then in the aggregate to assess the agents’ reasonable
suspicion under our totality of the circumstances inquiry.

        First, St. Thomas ICE received a tip from CBP that a
suspicious vessel was approaching St. Thomas, which matched
the description of Perez-Polanco’s yolla found at the Marina.
Mathurin argues that the tip that Agent Hodge received from the
DHS CBP aircraft was unreliable, and thereby attempts to
undermine the significance of the first factor on which the
District Court relied. Specifically, he asserts that the District
Court clearly erred in misattributing the source of the tip as ICE
Puerto Rico and that we should treat the tip as anonymous.
While we acknowledge the District Court’s error in analyzing
the tip as if it originated from ICE Puerto Rico,4 we believe this
mistake does not undermine the weight the District Court
afforded this factor in its totality of the circumstances analysis.
It is undisputed that the tip came from one federal law
enforcement agency to another, and that the tipster agency
communicated with ICE St. Thomas to alert it to an incoming
vessel that it deemed suspicious for reasons it explained at the


       4
        It appears that the District Court had no reason to know
the origin of the tip was the DHS CBP aircraft when it drafted
its opinion denying Mathurin’s motion to suppress the cocaine
found in the 4Runner, as this information did not surface until
Agent Hodge testified at Mathurin’s trial. Indeed, prior to trial,
the U.S. Attorney, in her argument and direct examination
questions at Mathurin’s suppression motion hearing,
consistently referred to the source of the tip as “ICE Puerto
Rico.”

                                11
time. Further, Agent Aguilar testified at Mathurin’s suppression
motion hearing that

              “[o]nce we receive a lead or tip from
       another federal agency, we treat that as a credible
       source of information, and we act upon it.

              We use that as a basis or starting point for
       our investigation. And we use that other agency’s
       report and their experience to tell us that, for
       whatever reason, this vessel in this instance was
       suspicious . . . .” 5

Therefore, whether the tip originated from ICE Puerto Rico or
a DHS-operated CBP aircraft is inapposite in our assessment of
the weight ICE St. Thomas should have afforded it.

      Mathurin also argues that we should view the tip as
anonymous, and therefore less reliable. He asserts that a tip
from ICE Puerto Rico to ICE St. Thomas, in contrast to a tip


       5
         Agent Aguilar, however, was responding to a question
on direct examination by the U.S. Attorney that identified the
“sister federal agency” in her question as “ICE Puerto Rico.”
This, of course, contrasts with Agent Hodge’s trial testimony
indicating that he actually received the call from the DHS CBP
aircraft operator. The Government has not directly responded
to this apparent factual tension. However, we deem this
distinction inapposite because we view CBP, not only ICE
Puerto Rico, as a “sister federal agency.”

                               12
from the CBP aircraft, would have enabled Agent Hodge to
determine the caller’s identity, the caller’s basis for deeming the
vessel suspicious, as well as what type of criminal activity to
investigate, but that, instead, we must surmise the answers to
those questions based on the limited information the DHS CBP
aircraft provided to ICE St. Thomas. He relies on United States
v. Roberson, a case in which we treated a call to a 911 operator
from an unidentified caller as an anonymous tip. See 90 F.3d
75, 79-81 (3d Cir. 1996). Mathurin argues the facts of Roberson
are analogous to the circumstances of the CBP aircraft tip in the
instant appeal because in both cases the sources of the tips were
unknown, as was any other information about the callers that
could have increased the reliability of the tips.

       We decline to treat the CBP tip as anonymous. Roberson
is readily distinguishable from the factual scenario presented
here. We need not undertake the established legal methods for
testing the reliability of this tip because a tip from one federal
law enforcement agency to another implies a degree of expertise
and a shared purpose in stopping illegal activity, because the
agency’s identity is known. Cf. United States v. Torres, 534
F.3d 207, 212-13 (3d Cir. 2008) (holding that a 911 call is not
an anonymous tip within our jurisprudence when the 911
operator simply failed to take the name of the taxi driver tipster,
who “did volunteer that he was driving a green taxicab from a
specified company” and “neither attempted to, nor had any
reason to, conceal his identity”). Moreover, the Government did
not assert that the tip alone satisfied reasonable suspicion.
Instead, ICE used it as a legitimate basis for launching its
investigation into Perez-Polanco’s actions on the date in
question in St. Thomas. See, e.g., United States v. Perez, 440

                                13
F.3d 363, 371-72 (6th Cir. 2006) (listing a tip from “one DEA
office to another[,] because it . . . believed [the vehicle in
question] might be involved in transporting cocaine,” among the
“factors to be aggregated” in evaluating and ultimately
determining that the agents had reasonable suspicion for an
investigative stop of the vehicle).

        We find this factor probative because we defer to the
agents’ training and experience, and acknowledge their
testimony that they deemed the vessel approaching the Marina
suspicious. See Arvizu, 534 U.S. at 273-74. Agent Aguilar
testified at the suppression hearing that the approaching vessel
was suspicious because it was a yolla, low to the water line,
likely painted blue, did not appear to be used for recreation, and
carried only one passenger. He further testified that “[b]ased on
[his] experience . . . in St. Thomas, small wooden or yolla boats
like this type had been used in the past to smuggle drugs,
currency, between the islands.”          Therefore, Mathurin’s
arguments regarding the tip’s source and questioning its
reliability do not affect our overall conclusion that the CBP tip
alerting ICE St. Thomas to an approaching suspicious vessel
supports the existence of reasonable suspicion.

       Mathurin argues that the remaining factors on which law
enforcement relied in establishing reasonable suspicion do not
combine to give rise to reasonable suspicion of illegal activity,
nor do they “eliminate a substantial portion of innocent
travelers.” Karnes, 62 F.3d at 493. We will examine briefly
each of these factors, and then consider them under the totality
of the circumstances. The second factor on which the agents
relied was Perez-Polanco’s dock and hotel reservations. Upon

                               14
launching their investigation, the agents discovered that Perez-
Polanco “had paid for a slip at Crown Bay [Marina] until
midnight of that same day, and had secured a hotel room for one
night only,” for which he paid in cash. The Marina workers
reported that he requested a taxi to the nearest hotel, and carried
no luggage. Although this factor is insufficient alone for
reasonable suspicion, it does support the agents’ suspicion under
the totality of the circumstances.

        Third, once the agents discovered the identity of the
boat’s occupant, they ran a criminal background check and
found that police had previously arrested Perez-Polanco in
Puerto Rico on separate occasions, once with cocaine and
another time with a large amount of cash – a “tool[] of the trade
common for drug dealers,” according to the Government.
Mathurin acknowledges that Perez-Polanco’s criminal past,
involving cocaine and large sums of cash on his person, was a
valid factor for the District Court to consider, among others,
when it assessed reasonable suspicion under the totality of the
circumstances. Yet, a past criminal conviction, never mind an
arrest record, is not sufficient alone for reasonable suspicion;
law enforcement agents must support this fact with sufficient
corroborating evidence. See, e.g., United States v. Ten
Thousand Seven Hundred Dollars & No Cents in U.S. Currency,
258 F.3d 215, 233 (3d Cir. 2001) (holding that the appellants’
prior criminal convictions demonstrated that they “could be
linked to the narcotics trade in the past, and . . . [are] probative
because [they] might give rise to a reasonable suspicion or
‘hunch’ that the currency in their possession was drug-related,”
but that “without additional credible evidence linking” the
appellants to criminal activity, their prior convictions are not “a

                                15
sufficient temporal link to the drug trade to support the
forfeiture” of their money). The District Court correctly relied
on this fact as a basis for suspicion and, while we acknowledge
that law enforcement officers cannot obtain reasonable
suspicion on the basis of criminal history alone, we agree with
the Government that the agents adequately corroborated this
factor with additional evidence from their investigation.

        Fourth, the District Court viewed Mathurin’s visits to the
Hotel as probative. In the time span of two hours, Mathurin
visited Perez-Polanco’s hotel room twice, proceeding directly to
the room both times. On both occasions, he entered the room
carrying a plastic bag, and he left each time without it. Agent
Aguilar did not testify to any details about the plastic bags
beyond that the first one was “light-colored” and the second one
was “dark-colored.” Mathurin stayed in Perez-Polanco’s room
no longer than a few minutes on each visit.

        Finally, the District Court relied on Mathurin and Perez-
Polanco’s separate exits from the hotel room following
Mathurin’s second visit as a factor raising suspicion, and the
Government continues to advance it as important evidence in the
agents’ calculus. Mathurin argues that “[u]nlike cases where the
activity, while innocent[,] is a hallmark of drug activity, walking
a few minutes behind your mate when leaving a hotel room is
not out of the ordinary for travelers, let alone the rest of the
population.” Cf. United States v. Sharpe, 470 U.S. 675, 682 n.3
(1985) (describing some known methods and indicia of
transporting drugs by car). On the contrary, the Government
argues this exit was extraordinary. It asserted at oral argument
that following Mathurin’s second visit,

                                16
       “Mr. [Perez-]Polanco waits behind. He allows
       Mr. Mathurin to proceed to the vehicle and, upon
       exiting, does his own surveillance. Again, that is
       his consciousness of guilt. . . . The innocent
       traveler does not leave his hotel room and stand
       for almost a minute just looking around
       suspiciously as if he knows that he is being
       watched. . . . Then he goes to the vehicle that is
       waiting for him. He walks behind Mr. Mathurin,
       as if to say, “I’m not with this guy. He might be
       a drug dealer, he just brought drugs to this
       property, but I’m not with him.” . . . And then,
       when they’re in the vehicle, they’re headed
       directly back for the marina – the location of his
       yolla . . . .”

This parallels Agent Aguilar’s suppression hearing testimony,
in which he stated that he found this particular behavior
significant, explaining that it “defied common sense” that the
two men left the room separately. The Government also argues
that because we are examining whether the agents had
reasonable suspicion to stop the vehicle in which both Mathurin
and Perez-Polanco were traveling, we cannot divorce Perez-
Polanco’s actions from Mathurin. We agree. Perez-Polanco and
Mathurin’s separate exits from the Hotel, coupled with the
agents’ perception of Perez-Polanco’s countersurveillance,
support the existence of reasonable suspicion.

      We agree with Mathurin that each of these factors alone
was insufficient to amount to a reasonable suspicion that
criminal activity was afoot, and each, with the exception of

                              17
Perez-Polanco’s criminal record, might indicate wholly innocent
behavior. However, Mathurin argues that the factors in this
case, even when combined, do not amount to reasonable
suspicion because they fail to eliminate a substantial portion of
innocent travelers. He directs our attention to Karnes, in which
we held that

       “Reid [v. Georgia, 448 U.S. 438 (1980),] and
       Sokolow, taken together, demonstrate it is not
       enough that law enforcement officials can
       articulate reasons why they stopped someone if
       those reasons are not probative of behavior in
       which few innocent people would engage – the
       factors together must serve to eliminate a
       substantial portion of innocent travelers before the
       requirement of reasonable suspicion will be
       satisfied. This is a totality of the circumstances
       test.”

62 F.3d at 493.

       Therefore, to rise to a reasonable suspicion, these factors
combined must “eliminate a substantial portion of innocent
travelers” or describe “behavior in which few innocent people
would engage.” Id. We must view the factors together, under
“the totality of the circumstances,” from the viewpoint of the
agents, in assessing whether reasonable suspicion existed “that
the particular individual being stopped [wa]s engaged in
wrongdoing.” Cortez, 449 U.S. at 417-18. We also note that
“[a] determination that reasonable suspicion exists, however,
need not rule out the possibility of innocent conduct.” Arvizu,

                               18
534 U.S. at 277. Further, in Sokolow, the Supreme Court
extended its earlier statement in Illinois v. Gates, 462 U.S. 213,
244 n.13 (1983), that “the relevant inquiry is not whether
particular conduct is ‘innocent’ or ‘guilty,’ but the degree of
suspicion that attaches to particular types of noncriminal acts,”
to apply not only in probable cause determinations, but to
reasonable suspicion inquiries as well. 490 U.S. at 10.

       Additionally, we acknowledge the agents’ experience and
training in investigating illegal drug activity in St. Thomas when
reviewing the cumulative effect of this information on the
agents. See Arvizu, 534 U.S. at 273 (allowing officers to utilize
their experience and training “to make inferences from and
deductions about the cumulative information available to them
that ‘might well elude an untrained person’” (quoting Cortez,
449 U.S. at 418)); Whitted, 541 F.3d at 491 (explaining how the
customs officer’s specialized training and years of experience
led to his reasonable suspicion of drug smuggling in that
instance). Agent Aguilar testified that, based on his experience,
the yolla and its characteristics raised his suspicion of drug
smuggling and that, in light of the additional evidence the agents
collected throughout the day, Mathurin and Perez-Polanco’s
separate exits from the hotel room “defied common sense” and
continued to indicate criminal activity. Agent Aguilar’s
description and evaluation of the evidence, substantiated by his
clearly articulated “commonsense inference[s],” Arvizu, 534
U.S. at 277, bolster the Government’s argument that the agents
had reasonable suspicion to search the 4Runner. See also
United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998)
(“Deference . . . is given to the officer’s conclusions based on


                               19
the officer’s experience.”). We agree that the agents acted on
more than a mere hunch in doing so.

       Under the totality of the circumstances, we conclude the
factors amount to reasonable suspicion. 6 Although the factors
present a close call, when viewed collectively and in light of the
agents’ experience and training, they amounted to a
particularized and objective basis for suspecting Mathurin and
Perez-Polanco of criminal activity when the agents stopped the
4Runner. Thus, the agents had reasonable suspicion and the
stop was therefore a reasonable investigatory stop under the
Fourth Amendment.

                               IV.

      For the foregoing reasons, we agree that the District
Court properly denied Mathurin’s motion to suppress the


       6
        Though highly factual in nature, we find the Supreme
Court’s decision in Sokolow analogous. Cf. 490 U.S. at 3
(holding DEA agents had reasonable suspicion to stop Sokolow
after evidence from his travel plans and demeanor raised the
agents’ suspicion of his involvement in illegal drug activity). In
addition, contrary to Mathurin’s assertions, we find Karnes
distinguishable because, in that case, the information on which
the state troopers relied in detaining Karnes failed to rise to a
reasonable suspicion of illegal drug activity when each factor
was entirely innocent and the officers offered no “concrete
reasons” explaining why, as a whole, they found the behavior
suspicious. 62 F.3d at 494-97.

                               20
cocaine discovered in the 4Runner. We hold that the agents had
reasonable suspicion that criminal activity was afoot based on
the factors present, when combined under the totality of the
circumstances and viewed with deference to the agents’
experience and training, to stop the 4Runner on the evening in
question. We will affirm Mathurin’s conviction.




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