                                                                            FILED
                           NOT FOR PUBLICATION                              JUN 14 2012

                                                                        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. 11-10141

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00633-CKJ-
                                                 BPV-2
  v.

LUIS ARENAS-LOPEZ,                               MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                       Argued and Submitted March 16, 2012
                             San Francisco, California

Before: WALLACE and BEA, Circuit Judges, and BENNETT, District Judge.**

       Arenas-Lopez appeals from his conviction for conspiracy to possess

marijuana with intent to distribute under 21 U.S.C. §§ 846, 841(a)(1) and

841(b)(1)(B)(vii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
      Arenas-Lopez’s argument focuses only on the district court’s denial of his

motion to suppress under the Fourth Amendment. He argues that his warrantless

arrest was not supported by probable cause.

      Arenas-Lopez’s opening brief does not present any argument that the facts

found by the district court are insufficient to support probable cause. Therefore,

any argument dealing with whether the facts found justify probable cause to stop

and arrest Arenas-Lopez has been waived. Fleischer Studios, Inc. v. A.V.E.L.A.,

Inc., 654 F.3d 958, 965 (9th Cir. 2011). Instead, Arenas-Lopez argues that the

district court erred in considering and clearly erred in finding certain facts. Arenas-

Lopez asserts that when these facts are removed from the analysis, there is no

probable cause. Therefore, in addressing his argument, we limit ourselves to the

narrow question of whether the district court erred by considering or clearly erred

by finding the disputed facts.

      The district court did not clearly err in finding that Arenas-Lopez looked

“surprise[d],” “concern[ed]” or “alarm[ed]” when he noticed the agent in a vehicle

in the lane next to his, because that is a reasonable interpretation of the testimony,

which described Arenas-Lopez’s expression as an “oh no” reaction.

      The district court did not clearly err in finding that Agent Whitney passed

the purple Explorer while chasing the white Dodge because the district court never


                                           2
found this fact—instead it found that “Whitney believes he passed the Ford

Explorer.” The district court did not rely on Whitney’s belief, and Arenas-Lopez

has not shown how Whitney’s subjective belief is relevant.

      The district court did not err in considering Arenas-Lopez’s very hard look

at Agent Whitney at the rest stop because a court is required to consider the

“totality of the circumstances,” which includes innocent and incriminating facts

alike. United States v. Arvizu, 534 U.S. 266, 274–75 (2002) (requiring

consideration of innocent factors such as looking in a store window, driving a

minivan, looking awkward when waving, talking with friends, or any other acts

“consistent with innocent travel”). Arenas-Lopez’s argument is based on his effort

to reinstate the divide-and-conquer approach, already rejected in Arvizu, by

excluding innocent facts from the totality analysis. The district court was required

to consider all factors, regardless whether others would consider them originally

innocent or incriminating. Arenas-Lopez’s argument that a particular fact was

innocent misses the point. Therefore, the district court did not err in considering

the testimony that Arenas-Lopez gave a “very hard” look at Agent Whitney. Even

what might otherwise be innocent conduct can, in the totality of the case, be

significant.




                                           3
      Some might think a casual look to satisfy Arenas-Lopez’s curiosity could be

important but the evidence accepted by the district court does not show a curiosity

type of look. The testimony is that Arenas-Lopez looked “very hard” to see what

Whitney was doing. Just as the “oh no” expression described above can support

probable cause, so can an intensely observant expression. See United States v.

Ewing, 638 F.3d 1226, 1232 (9th Cir. 2011) (considering a person’s nervous

expression).

      Ultimately, we need not weigh the probative value of the very hard look,

because Arenas-Lopez has waived the argument that the facts considered by the

district court do not support probable cause. Arenas-Lopez has limited his

argument to whether the district court permissibly considered certain facts, without

arguing that the facts found by the district court are insufficient to establish

probable cause.

      The district court did not err by considering whether Arenas-Lopez might

have begun his trip in the city of Douglas where the Explorer was registered. This

discussion occurred only after the district court explained the facts challenging

Arenas-Lopez’s story that he had begun his trip in Sahuarita.

      The district court did not err in considering the irregularities in Arenas-

Lopez’s story that he was attending a funeral, because Arenas-Lopez’s driving


                                            4
pattern would have required him to have turned around and headed back

southbound almost as soon as he arrived in Sahuarita. Whether true or not, it is, in

the view of the district court, an unusual driving pattern that must be considered as

part of the totality of the circumstances.

      The district court did not erroneously apply the collective knowledge

doctrine because Agents Housley and Jarmon were aiding Agent Whitney in his

investigation at the time of the arrest. United States v. Jensen, 425 F.3d 698,

704–705 (9th Cir. 2005).

      The district court was not required to hold an evidentiary hearing because it

did not reject the magistrate judge’s credibility findings. United States v. Raddatz,

447 U.S. 667, 676, 680–81 (1980).

      AFFIRMED




                                             5
                                                                              FILED
United States v. Arenas-Lopez, 11-10141                                        JUN 14 2012

                                                                          MOLLY C. DWYER, CLERK
BENNETT, District Judge, concurring in part and dissenting in part:         U .S. C O U R T OF APPE ALS




      I agree with the majority’s conclusion that the district court was not required

to hold an evidentiary hearing, as it did not reject the magistrate judge’s factual

findings. I respectfully dissent, however, from the majority’s resolution of Arenas-

Lopez’s claim that the district court erred in determining that probable cause

existed to arrest the defendant.

      I disagree that Arenas-Lopez cabined his argument to the sole issue of

whether the district court erred in considering and clearly erred 1 in finding certain

facts and, therefore, waived any argument that the facts here are insufficient to

support probable cause. Rather, Arenas-Lopez broadly framed the issue presented

to this panel as whether the district court erred in determining there was probable

cause to arrest the defendant. Tellingly, the government does not parse Arenas-

Lopez’s argument like the majority does and, to the contrary, treats Arenas-



      1
        I agree with the majority that the binding law of this circuit instructs this
panel to review the district court’s factual findings for clear error, see, e.g., United
States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005), but I disagree with the
application of this precedent to cases in which the district court, like us, relies on
the magistrate judge’s evidentiary hearing. When the district court bases its factual
findings on the same cold record as the one before this court, we should,
accordingly, afford less deference to the district court’s findings of fact.
Nonetheless, my disagreement with the district court, as explained below,
ultimately lies not with its findings of fact but, rather, the inferences it drew from
those facts.
Lopez’s brief as arguing broadly that insufficient facts supported the district

court’s finding of probable cause. The government devotes its brief to explaining

how the facts here do support probable cause and relegates to footnotes its

arguments as to whether the district court erred in considering or finding any facts.

Notably, nowhere in its brief does the government contend that Arenas-Lopez

waived the argument that the facts were insufficient to support probable cause.

      Moreover, even accepting the majority’s interpretation that Arenas-Lopez

waived this argument, I would exercise our discretion to reach the question of

whether the facts support probable cause, as I find that this issue qualifies as an

exception to the general rule that this court will not countenance waived

arguments:

             We “will not ordinarily consider matters on appeal that are
             not specifically and distinctly argued in appellant’s opening
             brief.” Miller v. Fairchild Industries, Inc., 797 F.2d 727,
             738 (9th Cir. 1986). Three main exceptions to that rule
             exist. First, we will review an issue not present in an
             opening brief for “good cause shown”, Fed. R. App. P. 2,
             or “if a failure to do so would result in manifest injustice.”
             United States v. Loya, 807 F.2d 1483, 1487 (9th Cir. 1987).
             Second, “[w]e have discretion to review an issue not raised
             by appellant . . . when it is raised in the appellee’s brief.” In
             re Riverside Linden Investment Co., 945 F.2d 320, 324 (9th
             Cir. 1991). Third, we may review an issue if the failure to
             raise the issue properly did not prejudice the defense of the
             opposing party.

United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). Here, all three

                                            2
exceptions are applicable—the second and third, clearly so, as the government

addressed in its brief whether the facts support probable cause and, therefore,

would not be prejudiced by our consideration of this issue. I also believe the first

exception is met, as it would be a manifest injustice to read Arenas-Lopez’s brief

so narrowly as to exclude the issue at the heart of this dispute: whether the facts

support a finding of probable cause. Therefore, I would—and do—consider

whether there was probable cause to arrest Arenas-Lopez.

      Although this is certainly a close case, I disagree with the district court that

the agents had probable cause to arrest Arenas-Lopez without a warrant. The facts

may be sufficient to support reasonable suspicion that Arenas-Lopez and his co-

defendant were engaged in a scout car-load car drug trafficking scenario, but not

probable cause.2 The government directs us to United States v. Vital-Padilla, 500

F.2d 641 (9th Cir. 1974), in which this court recognized that a scout car-load car

      2
         The agents involved in Arenas-Lopez’s arrest apparently shared my
view—at least before Arenas-Lopez filed a motion to suppress. Although the
United States Supreme Court has “ma[d]e clear that an arresting officer’s state of
mind (except for the facts that he knows) is irrelevant to the existence of probable
cause,” Devenpeck v. Alford, 543 U.S. 146, 153 (2004), this case is exceedingly
rare—the arresting agent himself did not believe he had probable cause to arrest
the defendant for any crime. The arresting border patrol agent, here, initially
released Arenas-Lopez for lack of probable cause to arrest him. The agent only
arrested Arenas-Lopez after the supervising DEA agent told him to do so
(interestingly, the supervising DEA agent’s report of the arrest also only mentions
the agents’ reasonable suspicion to believe Arenas-Lopez was involved in drug
trafficking, not probable cause).

                                           3
scenario may give rise to probable cause to arrest the scout car driver, where

sufficient facts exist to suggest that the two vehicles are driving in tandem and

contraband has been found in the load car. Id. at 643-44. However, the facts of

Vital-Padilla are entirely distinguishable from and much more suspicious than the

facts here: in Vital-Padilla, agents observed two cars traveling thirty to forty yards

apart down an abandoned dirt road near the border, at dusk, with no lights on, and

at twice the safe rate of speed for that road. Id. at 643. Here, in contrast, the

border patrol agent first observed Arenas-Lopez’s vehicle early on a Sunday

morning traveling on an on-ramp to merge onto a major interstate, while the

alleged load car was just about to turn onto the on-ramp. Once on the interstate,

the vehicles were approximately a quarter mile apart, and the agent passed the

vehicles with his cruise set at seventy-five or eighty miles an hour. There is

nothing suspicious, or even remarkable, about this driving pattern.

      Moreover, there is absolutely nothing significant about the fact that Arenas-

Lopez’s vehicle was registered in Douglas. Where a vehicle is registered indicates

very little about where a vehicle began any particular trip. Someone may commute

over an hour to work each day; if she is pulled over while out grabbing lunch, does

the fact that her car is registered in a county an hour away make her “story” that

she was driving from her work to lunch suspicious? Furthermore, the lack of an



                                           4
overnight bag in Arenas-Lopez’s vehicle is not at all suspicious. Arenas-Lopez

stated that he was traveling from Sahuarita to Nogales for a funeral. The two cities

are only fifty miles apart—why would someone bring an overnight bag for a round

trip of less than two hours?

      As this decision is a memorandum disposition, I do not continue on to list all

the facts and explain, in detail, my disagreements with the district court as to each

one. I simply note that I agree with Magistrate Judge Velasco that the government

has re-spun reasonable suspicion into probable cause here. I cannot help but

wonder: if Arenas-Lopez were not Hispanic, would he even have been pulled over?

It seems the primary factor raising the agents’ suspicions was that Arenas-Lopez

was “driving-while-Hispanic.”3 The facts do not support the government’s post-

hoc legal maneuvering to save its case.




      3
        This court, in what it has described as a “driving-while-Hispanic case,”
rejected officers’ suspicions “premised on a profile that could ‘certainly fit
hundreds of thousands of law abiding daily users of the highways.’” See United
States v. Osborn, 203 F.3d 1176, 1182 (9th Cir. 2000) (quoting United States v.
Rodriguez, 976 F.2d 592, 596 (9th Cir. 1992)) (describing Rodriguez’s holding).

                                           5
