                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 11 2012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. 11-10310

              Plaintiff - Appellee,             D.C. No. CR 2:10-1387- PGR

  v.
                                                MEMORANDUM *
SALMINEO ANTHONY BAUTISTA,
AKA Sal Bautista

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                 Paul G. Rosenblatt, Senior District Judge, Presiding

                        Argued and Submitted May 18, 2012
                             San Francisco, California

Before: CLIFTON and N.R. SMITH, Circuit Judges, and SELNA, District Judge.**

       Salmineo Bautista conditionally pled guilty to violating 18 U.S.C. § 2 and 21

U.S.C. §§ 841(a)(1) and (b)(1)(D). He appeals the district court’s denial of his

motion to suppress statements and evidence obtained from a traffic stop of a vehicle


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James V. Selna, District Judge for the U.S. District
Court for Central California, sitting by designation.
in which he was a passenger. Bautista contends the traffic stop violated his Fourth

Amendment rights because it was not supported by individualized reasonable

suspicion of criminal activity. We conclude that the factual findings the district

court made and relied on for its reasonable suspicion determination were not clearly

erroneous. Considering the permissible factors present, there was reasonable

suspicion of criminal activity. We therefore affirm.

       “[L]aw enforcement agents may briefly stop a moving automobile to

investigate a reasonable suspicion that its occupants are involved in criminal

activity.” United States v. Hensley, 469 U.S. 221, 226 (1985) (citing United States

v. Brignoni-Ponce, 422 U.S. 873, 881 (1975)). Such a stop is a Fourth Amendment

seizure of “everyone in the vehicle” and each occupant has standing to challenge

the stop. Brendlin v. California, 551 U.S. 249, 255 (2007). Reasonable suspicion

must be “formed by specific, articulable facts which, together with objective and

reasonable inferences, form the basis for suspecting that the particular person

detained is engaged in criminal activity.” United States v. Thompson, 282 F.3d 673,

678 (9th Cir. 2002) (internal quotation marks omitted).

      After an evidentiary hearing on the motion to suppress, the district court

found (1) that the stop occurred on a “lonely road well known to be a smuggling

route”; (2) that the vehicle was traveling in tandem with another vehicle, which is


                                           2
consistent with smuggling activity; (3) that both drivers appeared to be concealing

their faces by drinking as they passed the border patrol vehicle; and (4) that the rope

flapping from the car was characteristically associated with marijuana smuggling

and was not used to hold down the trunk. None of these findings are clearly

erroneous because they are not illogical or implausible and are supported by

inferences from the record. United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.

2009) (en banc).

      It is an error to rely on facts that are insufficiently particular and would

encompass large segments of the law-abiding population. United States v.

Montero-Camargo, 208 F.3d 1122, 1131-37 (9th Cir. 2000) (en banc) (finding it

error to consider the Hispanic appearance of vehicle occupants and one occupant’s

eye contact with officers followed by reading a newspaper). We find it was error to

rely on the drivers taking a drink because such action is less particular than reading

a newspaper and likely such common driver behavior it would encompass large

segments of the law-abiding population. Compare id. at 1135, 1137, with United

States v. Johnson, 581 F.3d 994, 1000 (9th Cir. 2009) (relying in part on the fact

that one of the defendant’s associates “flipped up the hood on his hooded

sweatshirt, which could aid in concealing his identity” after entering a bank).

However, all the remaining factors are sufficiently particular to support permissible


                                           3
reliance. See United States v. Palos-Marquez, 591 F.3d 1272, 1277 (9th Cir. 2010);

Montero-Camargo, 208 F.3d at 1139.

      To evaluate whether a stop was supported by reasonable suspicion a court

considers “whether, in light of the totality of the circumstances, the officer had a

particularized and objective basis” for suspecting the detainee was engaged in

criminal activity. Palos-Marquez, 591 F.3d at 1274-75 (citation and internal

quotation marks omitted). Based on the remaining permissibly considered factors,

we find there was a sufficient basis to objectively form a reasonable suspicion of

criminal activity. See United States v. Diaz-Juarez, 299 F.3d 1138, 1141-42 (9th

Cir. 2002) (finding reasonable suspicion existed based on history of drug trafficking

in the region, proximity to the border, unusual characteristics of the car, and driving

behavior). Accordingly, the motion to suppress was properly denied.

      AFFIRMED.




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