                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 10 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S . CO U RT OF AP PE A LS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50343

               Plaintiff - Appellee,             D.C. No. 3:08-cr-01362-DMS-1

   v.
                                                 MEMORANDUM *
EDUARDO GUERRERO,

               Defendant - Appellant.



                     Appeal from the United States District Court
                        for the Southern District of California
                      Dana M. Sabraw, District Judge, Presiding

                           Submitted November 5, 2010**
                               Pasadena, California

Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT,

District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
      Eduardo Guerrero appeals his conviction for transportation of illegal aliens

and aiding and abetting commission of that offense in violation of 8 U.S.C. y

1324(a)(1)(A)(ii) and (v)(II). Guerrero challenges the district court's denial of his

motion to suppress evidence obtained as a result of an investigatory stop of his

vehicle by a U.S. Border Patrol agent. Guerrero contends that the agent lacµed

reasonable suspicion for the stop, violating his rights under the Fourth

Amendment. We affirm.

      An investigatory stop does not violate the Fourth Amendment 'if the officer

has a reasonable suspicion supported by articulable facts that criminal activity

'may be afoot.'' United States v. Soµolow, 490 U.S. 1, 7 (1989) (quoting Terry v.

Ohio, 392 U.S. 1, 30 (1968)). To determine whether a stop was supported by

reasonable suspicion, 'we consider whether, in light of the totality of the

circumstances, the officer had a 'particularized and objective basis for suspecting

the particular person stopped of criminal activity.'' United States v.

Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007) (quoting United States v.

Cortez, 449 U.S. 411, 417-18 (1981)). 'In the context of border patrol stops,

relevant facts include: '(1) characteristics of the area; (2) proximity to the border;

(3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling

in the area; behavior of the driver, including obvious attempts to evade officers; (6)


                                           2
appearance or behavior of passengers; (7) model and appearance of the vehicle;

and, (8) officer experience.'' United States v. Palos-Marquez, 591 F.3d 1272,

1277 (9th Cir. 2010) (quoting United States v. Garcia-Barron, 116 F.3d 1305,

1307 (9th Cir. 1997)).

      Guerrero was stopped by U.S. Border Patrol Agent Terence Shigg a mile

south of the San Clemente Border Control Checµpoint, which is located roughly

forty miles north of the U.S. border. At an evidentiary hearing, Shigg testified that

he was patrolling Interstate 5 just south of the checµpoint when he first noticed

Guerrero's mid-sized sport-utility vehicle because it appeared to be heavily laden

and had darµly tinted windows. A twelve-year veteran of the border patrol and a

member of its Smuggling Interdiction Group, Shigg testified that the suspension of

smugglers's vehicles often sags due to the weight of their cargo and that smugglers

frequently tint their windows very darµ to prevent their passengers from being

seen. Shigg further testified that the late-model vehicle had a temporary paper

license plate, which he testified smugglers often use to avoid registration checµs.

The district court noted that it was unusual for a late-model vehicle, as opposed to

a new car, to have temporary license plates. After following the vehicle, Shigg

also noticed multiple passengers in the cargo area who appeared to be lying down

in order to avoid being seen. Shigg testified smugglers often tell their passengers


                                          3
to try to avoid being seen while in the vicinity of the checµpoint. In denying

Guerrero's motion, the district court found Shigg's testimony credible.

      Noting that none of the circumstances identified by Agent Shigg constituted

a vehicle code violation, Guerrero argues that the individual factors here, such as

the vehicle's appearance of being heavily laden, were insufficient to support a

reasonable suspicion of criminal activity. See United States v. Garcia-Camacho,

53 F.3d 244, 249 (9th Cir. 1995) (acµnowledging that the heavily laden nature of a

trucµ is less suspicious because, unliµe a passenger car, one of the normal uses of a

trucµ is to transport heavy materials). Conduct that may be entirely innocent in

isolation, however, may support reasonable suspicion when viewed under the

totality of the circumstances. See Soµolow, 490 U.S. 1, 10 (1989); United States v.

Montero-Camargo, 208 F.3d 1122, 1130 (9th Cir. 2000) (en banc) ('[S]ometimes

conduct that may be entirely innocuous when viewed in isolation may properly be

considered in arriving at a determination that reasonable suspicion exists.').

       In addition to its heavily laden appearance, Shigg based the stop of

Guerrero's vehicle on the darµness of its windows, its temporary license plates, the

conduct of the passengers, and the proximity of the border checµpoint. The

combination of these otherwise innocuous factors was sufficient here to give an

experienced officer a reasonable basis to suspect wrongdoing. Accordingly, the


                                          4
stop of Guerrero's vehicle did not violate his Fourth Amendment rights and the

evidence obtained was admissible.

AFFIRMED




                                        5
                                           FILED
U.S. v. Guerrero, Case No. 09-50343         NOV 10 2010
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO U RT OF AP PE A LS

     I concur in the result.
