                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     March 30, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                   Elisabeth A. Shumaker
                                    TENTH CIRCUIT                      Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellant,
                                                       No. 06-2111
 v.
                                               (D.C. No. CR-05-2602-M CA)
                                                         (D .N.M .)
 JORGE M ADROZA-ACOSTA and
 PED RO DELG A D O ,

          Defendants - Appellees.



                              OR DER AND JUDGM ENT *


Before L UC ER O, Circuit Judge, M cW ILLIAM S, Senior Circuit Judge, and
HA RTZ, Circuit Judge.




      The government appeals a district court order granting Jorge M adroza-

Acosta and Pedro D elgado-Fundora’s joint motion to suppress evidence. Police

Officer Sean Healy, a N ew M exico state patrolman, initiated a stop of a vehicle

occupied by the two men based on information provided to a police dispatcher by

an identified informant, Gary Burns. W e conclude that it was not clearly




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
erroneous for the district court to find that Burns did not provide adequate and

specific information to the dispatcher about why he suspected the van was

engaged in illegal activity. Based on the limited information the district court

found Burns’ provided to the dispatcher, we conclude that Healy did not have

reasonable suspicion to stop the van. Exercising jurisdiction pursuant to 18

U.S.C. § 3731, we A FFIR M .

                                          I

      On November 1, 2005, Gary Burns w as traveling west on Interstate 40 (“I-

40”), en route to his home in Phoenix, Arizona. He stopped at a convenience

store near mile marker 267, where he noticed what he described as an unusual

vehicle, a “white, one-ton van with blacked-out windows.” W hen he entered the

store, Burns observed numerous “Hispanic-looking” individuals that “appeared to

be a concentrated group.” After he left the store and returned to his car, he

watched those individuals – Burns counted approximately 18 or 19 people – enter

the suspicious-looking van.    Initially, Burns w rote down the van’s license plate

number and a brief description of the vehicle’s characteristics. After further

reflection, he attempted to contact the Border Patrol due to his suspicions that the

individuals he saw enter the van were undocumented aliens.

      Burns was unable to reach that agency, but was able to successfully contact

the New M exico State Police. Police dispatcher Annissa Ray, a trainee, spoke

directly with Burns. A recording of that conversation – which is incomplete due

                                          2
to faulty police recording equipment – reveals that Burns identified himself as

“Gary,” w anted to report “a lot of illegals [sic] traveling down the highway,” told

Ray his location, noted that 18 or 19 people were in an overloaded van, and

informed Ray that he “had the tag number and everything.” Because Ray was a

trainee she was not able to input this information into the police computer system.

Ray relayed the information Burns supplied to Carmen Leyba, her supervisor,

who prepared a “computer aided dispatch” (“CAD”) regarding the incident. The

CAD report shows that a call was received from a Gary Burns on November 1,

2005 at 12:46 p.m. It identifies his contact number, the activity being reported as

“UAD” (or “undocumented aliens”), notes the activity was observed on I-40 near

mile marker 267, and indicates that the suspect vehicle, described as a white

Chevrolet van with California license plate number 5NVBY479, was last seen

traveling west on I-40.

      Based upon Burns’ tip, Leyba contacted New M exico State Police Officer

Sean Healy, who was stationed in Edgewood, New M exico. Leyba told Healy

that a tipster had observed an unusual number of people enter a white van with

California license plates near mile marker 267, and that the van w as heading west

on I-40. Healy began heading east on I-40 in an effort to intercept the vehicle.

W hile en route, he received additional information that the van had dark-tinted

windows, displayed California license plate number 5NVBY479, and was

registered to an individual named Juan Perez.

                                         3
        On I-40, near M oriarty, New M exico, Healy spotted a white van with dark-

tinted windows heading west. After turning around, Healy began following the

van, but did not engage his emergency lights. Healy testified that the driver

looked back at him twice, but noted that this did not qualify as unusual. The van

was not speeding or being driven erratically. After Healy trailed the van for

approximately four miles, the van properly signaled and exited the highway.

Healy followed. W hen the van entered a truck stop, Healy signaled for the van to

stop.

        Healy approached the driver, and requested identification from both the

driver and front-seat passenger. Because of the nature of the suspected criminal

activity, Healy requested back-up assistance. After another police vehicle

arrived, Healy asked for documentation from the van’s other passengers. None

were able to comply. Healy then asked the driver and front-seat passenger about

their travel plans. Both stated that they were traveling from Houston, Texas to

Los Angeles, California. Although it is unclear exactly when, Healy instructed

dispatch to contact the Border Patrol, and shortly thereafter two agents arrived.

W hen those agents confirmed that the van’s passengers were undocumented

aliens, the agents arrested the entire group.

        Both the driver and the front-seat passenger, defendants M adroza-Acosta

and Delgado-Fundora, were charged with one count of conspiracy to transport

illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and four counts of

                                          4
transporting or aiding and abetting the transport of illegal aliens in violation of 8

U .S.C . §§ 1324(a)(1)(A )(ii), 1324(a)(1)(B)(I), and 1324(a)(1)(A)(v)(II). On

January 11, 2006 M adroza-Acosta filed a motion to suppress all evidence relating

to the seizure and subsequent search of the van. He argued that Healy lacked

probable cause or reasonable suspicion to initiate the traffic stop under Terry v.

Ohio, 392 U.S. 1 (1968). Delgado-Fundora joined that motion. On M arch 10,

2006 the district court granted defendants’ joint motion. The government now

appeals.

                                          II

      “In reviewing an order granting a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous . . . and view the evidence in the

light most favorable to the prevailing party.” United States v. Holt, 264 F.3d

1215, 1228 (10th Cir. 2001) (en banc). W e review the ultimate question of

whether the officer had reasonable suspicion to stop the vehicle de novo. Ornelas

v. United States, 517 U.S. 690, 699 (1996).

      Reasonable suspicion does “not rise to the level required for probable

cause, and it falls considerably short of satisfying a preponderance of the

evidence standard.” U nited States v. Arvizu, 534 U.S 266, 274 (2002). Rather,

“reasonable suspicion represents a minimum level of objective justification.”

United States v. M endez, 118 F.3d 1426, 1431 (10th Cir. 1997) (quotation

omitted). W hether an officer has reasonable suspicion to initiate a stop is “not

                                          5
readily, or even usefully, reduced to a neat set of legal rules.” United States v.

Sokolow, 490 U.S. 1, 7 (1989) (quotation omitted), and is a determination that

requires us to apply a “common sense” approach, United States v. W illiams, 271

F.3d 1262, 1268 (10th Cir. 2001). Its existence “is dependent upon both the

content of information possessed by police and its degree of reliability. Both

factors – quantity and quality – are considered in the ‘totality of the

circumstances – the whole picture.’” Alabama v. W hite, 496 U.S. 325, 330

(1990) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). The central

question is whether “[b]ased upon that whole picture the detaining officers must

have a particularized and objective basis for suspecting the particular person

stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18

(1981).

      The government does not argue that the border patrol agents had probable

cause to arrest the defendants absent the information obtained by Healy.

M oreover, the government concedes that the only basis for Healy’s stop of the

vehicle is the information Burns provided to the dispatcher. 1 Thus, based on the



      1
        The government argued below that Healy had reasonable suspicion to stop
the van and detain its occupants because of his independent knowledge and
experience. It cited the following factors independent of Burns’ information
purportedly in support of Healy’s stop of the vehicle: (1) Healy is aware that I-40
is a major smuggling thoroughfare for illegal aliens; (2) The driver of the van
glanced at Healy in the side view mirror; (3) The van had blacked-out window s;
(4) The van exited the freeway once Healy began following it; and (5) H ealy
                                                                      (continued...)

                                           6
Supreme Court’s decision in W hite, our inquiry in this case is two-fold: (1) W hat




      1
        (...continued)
knows that California is a source and destination point for illegal aliens.
        Although this line of argument has been abandoned on appeal, we feel
compelled to briefly address the government’s apparent belief that the defendants’
destination of C alifornia, a “source and destination point for illegal aliens,” is a
factor we should consider in determining whether Healy had reasonable suspicion
to search the van. This court has previously noted the exceptionally weak value
of this type of evidence in assessing whether reasonable suspicion existed to
justify a search for drugs. W illiams, 271 F.3d at 1270 (holding that, standing
alone, information that “a vehicle hails from a purported known drug source area
is, at best, a weak factor in finding suspicion of criminal activity”). This is
particularly true because so many geographical locations have been found to fall
within the category of “known drug source.” See United States v. Beck, 140 F.3d
1129, 1138 & n.3 (8th Cir. 1998) (noting that the following locales have been
characterized as “known drug sources” by law enforcement officials:
Albuquerque, New M exico; Chicago, Illinois; Dallas, Texas; Detroit, M ichigan;
El Paso, Texas; Fort Lauderdale, Florida; Houston, Texas; Los Angeles,
California; Long Beach, California; M iami, Florida; New York, New York;
Newark, New Jersey; Ontario, California; Oakland, California; Phoenix, Arizona;
Portland, Oregon; San Diego, California; San Francisco, California; Arizona;
California; Colorado; Florida; New Jersey; Texas; W ashington; and the “entire
west coast”). Since that decision, law enforcement agents have added a number
of geographical locations to that already expansive list. See, e.g., United States v.
Hornbecker, 316 F.3d 40, 41 (1st Cir. 2003) (Southern California); United States
v. Aleman-Fuguereo, 117 Fed. App’x 208, 209 (3d Cir. 2004) (Aruba, Curacao
and St. M aarten); United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir.
1999) (M exico); United States v. $30,000 in U.S. Currency, 30 Fed. App’x 473,
482 n.5 (6th Cir. 2002) (Columbus, Ohio); United States v. Pitts, 322 F.3d 449,
451-52 (7th Cir. 2003) (Northern California); United States v. Kaguras, 183 Fed.
App’x 783, 784-85, 790 (10th Cir. 2006) (Seattle, W ashington; British Columbia,
Canada); United States v. DeGasso, 369 F.3d 1139, 1142 n.2 (10th Cir. 2004)
(Chihuahua, M exico); Hurn v. United States, 221 F. Supp. 2d 493, 503 (D.N.J.
2002) (Jamaica); U nited States v. Hongla-Yamche, 55 F. Supp. 2d 74, 75 (D.
M ass. 1999) (Cameroon; W est Africa).
        To the extent that law enforcement officials seem primed to begin
identifying “known illegal alien communities” this type of evidence appears to be
of minimal, if any, evidentiary value.

                                         7
reliable information did Burns provide to the dispatcher? and (2) W as that

information sufficient to provide Healy with reasonable suspicion to stop the van?

                                          A

      As noted above, we review the district court’s factual findings as to what

information was provided under the “clearly erroneous” standard. Holt, 264 F.3d

at 1228. “[A] finding is ‘clearly erroneous’ w hen although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.” Anderson v. City of

Bessemer, 470 U.S. 564, 573 (1985). “If the district court’s account of the

evidence is plausible in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it been sitting as the

trier of fact, it w ould have weighed the evidence differently.” Id. at 573-74.

      In assessing the information possessed by a law-enforcement officer at the

time of a stop, we apply the “fellow officer” rule. This requires us to look not to

what the officer herself knew , but to “the collective knowledge of all the officers

involved.” U nited States v. Hinojos, 107 F.3d 765, 768 (10th Cir. 1997). This

includes any information that was conveyed by an informant to a police

dispatcher. Id.; W hite, 496 U.S. at 328-30 (1990); United States v. Elkins, 70

F.3d 81, 83 (10th Cir. 1995) (“Tips, even if anonymous, coupled with independent

police work, provide reasonable suspicion to warrant an investigative stop.”).

       Burns spoke only to dispatcher Ray, and thus we must determine what

                                          8
information he conveyed to Ray. Our task on appeal is made more complicated

because the district court did not make a specific numbered finding on this point.

Reading the opinion as a whole, however, the district court found that only

limited information was forwarded by Burns to dispatcher Ray: the van’s “color,

license [plate] number, [a description that it had] blacked-out window s, [and its]

location, direction of travel, and number of occupants.”

      Although Burns testified that he provided additional information to

dispatcher Ray about why he suspected the van’s occupants were undocumented, 2

the district court rejected this testimony, stating “I find that M r. Burns did not

convey enough specific information about the reasons why he believed the van

and its occupants were suspicious.” Importantly, the government does not

challenge the district court’s finding that Burns did not provide information about

his suspicions. Based on our independent review of the record as a whole,

view ing the facts in favor of the defendants as w e are required to do, see Holt,

264 F.3d at 1228, we cannot say that we have a “definite and firm conviction”




      2
         Specifically, Burns alleged that he was suspicious of the van and its
occupants because: (1) Two of the individuals in the group appeared to be
guarding the others; (2) One of those men w as wearing a “booney” hat and
appeared to have a small object – possibly a knife – attached to his belt; (3) W hen
the group entered the van, they opened the van door only wide enough that a
single person could enter, preventing onlookers from peering inside the van; and
(4) A s he was leaving the store, he glanced at a newspaper article stating that if
an undocumented alien made it past the U.S.-M exico border the chance that the
alien would be apprehended was akin to the chance of being struck by lightning.

                                           9
that the district court’s finding on this point was erroneous. See Anderson, 470

U.S. at 573. Neither the CAD report nor the recording of Burns’ conversation

with dispatcher Ray indicates that Burns provided information about why he

suspected the van’s occupants were undocumented aliens. M oreover, neither

Leyba nor Healy provided clear testimony on this point. The only testimony

indicating that Burns provided his reasoning is Burns’ own, which the district

court found not to be supported by the record. 3

      Accordingly, under the very narrow standard with which we review the

district court’s factual findings, we affirm the district court’s finding that Burns

provided but the following limited, reliable 4 information to dispatcher Ray: the


      3
        To the extent the district court believed it was critical that the person that
actually spoke to Burns testify at trial, we note that under the fellow officer rule it
is immaterial whether the person that spoke to the informant testify. Instead, the
inquiry is merely whether the informant actually provided the information to a
police officer or dispatcher. Hinojos, 107 F.3d at 768. W e also note that the
fellow officer rule does not stand for the principle that an officer has all the
information known to both the citizen-informant and the officers involved in the
investigation, as the government suggests. Only the information the citizen
provided to law enforcement personnel may form the basis for reasonable
suspicion. See Hinojos, 107 F.3d at 768.
      4
         Defendants argue that none of the information Burns provided was
reliable. In determining the reliability of information supplied by an informant,
we consider the credibility or veracity of the informant, the basis of the
informant’s knowledge, and the extent to which the police are able to
independently verify the reliability of the tip. W hite, 496 U.S. at 328-32; Adams
v. W illiams, 407 U.S. 143, 147-48 (1972). Information that is given by an
identified informant with first-hand knowledge is entitled to greater weight. See
United States v. Johnson, 364 F.3d 1185, 1190-91 (10th Cir. 2004); United States
v. Jenkins, 313 F.3d 549, 554 (10th Cir. 2002). The district court found that the
                                                                        (continued...)

                                          10
van’s “color, license [plate] number, [a description that it had] blacked-out

windows, [and its] location, direction of travel, and number of occupants.”

                                          B

      W e turn now to whether Healy had reasonable suspicion to stop the van

based on the limited information, described in the previous paragraph, Burns

supplied to dispatcher Ray. The district court ruled that this limited information

was insufficient to establish reasonable suspicion. Burns stated that a large

number of Hispanic individuals were traveling west on I-40 in a van with dark-

tinted w indows, and informed the dispatcher that he suspected they were

undocumented, but never told the dispatcher why he believed they were

undocumented. Burns apparently formed his suspicions based on his additional

observations discussed above, and indeed these suspicions may give rise to an

officer’s reasonable suspicion in support of a stop, but the district court found

that this information was not communicated to dispatcher Ray. 5 Based on the


      4
        (...continued)
limited information Burns did provide to dispatcher Ray was reliable. The record
shows that Burns supplied dispatcher Ray with his full name and contact
information, personally observed the situation that he described, and conveyed
sufficient specificity regarding the van that there was a very low probability that
the officers would have stopped the wrong vehicle. Thus, we cannot say the
district court’s finding was clearly erroneous.


      5
        Because we conclude that the district court did not abuse its discretion in
finding that Burns did not inform the dispatcher why he suspected the van was
carrying undocumented aliens, we do not reach the question of whether Healy had
                                                                      (continued...)

                                         11
limited information that was provided to the dispatcher, we conclude that this

does not present a legal basis to stop the van. At best, at the time Healy stopped

the van he had “inchoate suspicions and unparticularized hunches” about whether

the occupants of the van were engaged in illegal activity. See United States v.

Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (noting that “inchoate suspicions

and unparticularized hunches . . . do not provide reasonable suspicion.”) (citing

United States v. W ood, 106 F.3d 942, 946 (10th Cir. 1997)). Thus, Healy’s stop

of the van under these circumstances offended the Fourth Amendment.



                                         III

      Accordingly, we A FFIR M . Judge M cW illiams dissents.



                                                    Entered for the Court


                                                    Carlos F. Lucero
                                                    Circuit Judge



      5
        (...continued)
reasonable suspicion to stop the van had this information been provided. That
said, under similar circumstances, when the informant conveyed the reasons for
her suspicions, we have held that reasonable suspicion existed to stop a vehicle.
See United States v. Leos-Quijada, 107 F.3d 786, 788-89, 794 (10th Cir. 1997)
(holding that officer had reasonable suspicion to stop a vehicle when confidential
informant personally observed the vehicle, provided a description of the vehicle
and its direction, detailed the basis for her suspicion that the vehicle was engaged
in illegal activity, and had previously given reliable information that led to the
successful apprehension of individuals engaged in various criminal activity).

                                         12
