                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 08 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 08-50305

             Plaintiff - Appellee,               D.C. No. CR-07-01445-BTM-1

  v.
                                                 MEMORANDUM *
CARLO ROBERT ZACCAGNINI,

             Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

               Argued June 4, 2009; Resubmitted December 4, 2009
                               Pasadena, California

Before: RYMER and GRABER, Circuit Judges, and ALDRICH, ** District Judge.

       Defendant Carlo Robert Zaccagnini appeals his conviction for possession of

marijuana with intent to distribute in violation of 21 U.S.C. § 841. He argues that

Border Patrol agents (1) lacked reasonable suspicion to initiate an investigatory




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Ann Aldrich, Senior United States District Judge for
the Northern District of Ohio, sitting by designation.
stop of his vehicle and (2) lacked probable cause to deploy a tire deflation device

to stop his vehicle. We affirm.

      1. We review de novo the legal question whether reasonable suspicion

existed to justify an investigatory stop and review for clear error the district court’s

findings of fact. United States v. Tiong, 224 F.3d 1136, 1139 (9th Cir. 2000).

      Extended border searches,1 "which occur after the actual entry has been

effected and intrude more on an individual’s normal expectation of privacy[,] . . .

must be justified by reasonable suspicion that the subject of the search was

involved in criminal activity." United States v. Guzman-Padilla, 573 F.3d 865,

877-78 (9th Cir. 2009) (alteration in original) (internal quotation marks omitted).

Law enforcement officers must also "possess a reasonable certainty that a border

has been crossed." Id. at 878 (internal quotation marks omitted).

      Here, the officers were reasonably certain that Defendant’s vehicle had

entered the United States from Mexico. The district court found that, because the

watching agents had not seen the vehicle enter the frontage road from the only two



      1
         Because the stop here took place fifteen miles from the border, the
extended border search doctrine applies. See Rodriquez-Gonzalez v. United
States, 378 F.2d 256, 258 (9th Cir. 1967) (finding that search conducted fifteen
hours after a border crossing at a distance of twenty miles from the border was an
extended border search).


                                           2
possible entry points on the American side of the border, the "highly likely, if not

only reasonable conclusion that they could draw would be that the vehicle came

from Mexico, which is very near this location and does not have a fence separating

the border." The testimony of the officers supports that finding.

      The officers also had reasonable suspicion to stop Defendant’s vehicle near

the international border.2 The Imperial Sand Dunes is a remote area near the

Mexican border at which there is no border fence and through which illegal entries

into the United States occur on almost a daily basis. Because of the frequency of

illegal entries there, the area is patrolled regularly by border police. Agent Mills

testified that when officers apprehend a vehicle that has entered illegally, they

often find that the driver is smuggling aliens or narcotics. He further testified that

smugglers typically drive four-wheel drive vehicles across the border and that

Defendant’s Suburban is a four-wheel drive vehicle. Agent Vega-Torres testified



      2
        The Supreme Court has set out a non-exhaustive list of factors that an
officer may take into account when deciding whether reasonable suspicion exists to
stop a car near an international border: (1) the "‘characteristics of the area’" in
which he or she encounters the vehicle; "‘(2) proximity to the border; (3) usual
patterns of traffic and time of day; (4) previous alien or drug smuggling in the area;
(5) behavior of the drive[r,] including obvious attempts to evade officers; (6)
appearance or behavior of the passengers; (7) model and appearance of the vehicle;
and (8) officer experience.’" Tiong, 224 F.3d at 1139 (quoting United States v.
Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (citing United States v.
Brignoni-Ponce, 422 U.S. 873, 884-85 (1975))).

                                           3
that, based on his experience, there was probable cause to believe both that

Defendant had entered the United States illegally and that he was engaged in

smuggling activity.3

        Because the officers were reasonably certain that Defendant had crossed an

international border and because they reasonably suspected that Defendant was

involved in criminal activity, they were justified in conducting an investigative

stop.

        2. We review de novo "[t]he determination of whether a seizure exceeds the

bounds of a[n] [investigative] stop and becomes a de facto arrest." United States v.

Miles, 247 F.3d 1009, 1012 (9th Cir. 2001) (internal quotation marks omitted).

"Under the Fourth Amendment, a warrantless arrest requires probable cause."

United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).

        "[I]ntrusive measures may convert a stop into an arrest if the measures

would cause a reasonable person to feel that he or she will not be free to leave after

brief questioning—i.e., that indefinite custodial detention is inevitable." Guzman-


        3
         The district court could consider the officers’ experience when assessing
reasonable suspicion because their conclusions were objectively reasonable, see
United States v. Montero-Camargo, 208 F.3d 1122, 1131 (9th Cir. 2000) (en banc),
based on the remote location of the Dunes, its proximity to the international border,
the frequency of smuggling in that area, the vehicle’s suspicious entrance onto the
frontage road from an unknown location, and the four-wheel drive capability of the
Suburban.

                                           4
Padilla, 573 F.3d at 884. Use of a tire deflation device to stop a vehicle, near an

international border, whose driver is reasonably suspected of criminal activity,

does not convert a stop into an arrest. See id. at 885 ("While anyone in

[Defendants’] situation would have felt constrained to remain at the scene

immediately after his or her tires had been deflated and as agents approached the

vehicle, it does not follow that the mere use of a [tire deflation device] to stop the

vehicle would have caused an innocent person to believe that a prolonged custodial

detention amounting to an arrest was about to occur."). Because, under Guzman-

Padilla, the officers did not effect an arrest of Defendant, they did not need

probable cause to deploy the tire deflation device. Reasonable suspicion of

criminal activity and reasonable certainty of a border crossing, which they

established, were enough.

      AFFIRMED.




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