                                                                          FILED
                           NOT FOR PUBLICATION                            OCT 18 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 12-10413

              Plaintiff - Appellee,             D.C. No. 4:08-cr-01567-DCB-BPV-1

  v.
                                                MEMORANDUM*
MARVIN RAY SCHULTZ,

              Defendant - Appellant.

UNITED STATES OF AMERICA,                       No. 12-10565

              Plaintiff - Appellee,             D.C. No. 4:08-cr-01567-DCB-BPV-2

  v.

JASON STEPHEN WALLACE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                             Submitted October 11, 2013**
                               San Francisco, California

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

      Defendants Marvin Ray Schultz and Jason Stephen Wallace appeal the district

court’s denial of their motion to suppress evidence obtained as a result of a traffic stop

near the Mexico border in November 2008. We review the district court’s decision

de novo, its findings of fact for clear error, and we affirm. United States v. Berber-

Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007).

             A brief investigatory stop does not violate the Fourth Amendment if the

officer possesses “reasonable suspicion” that the suspects are engaged in illegal

activity, which is more than a “hunch” but considerably less than probable cause or

a preponderance of the evidence. United States v. Sokolow, 490 U.S. 1, 7 (1989). To

determine whether a stop was justified by reasonable suspicion, we consider the

totality of the circumstances, including “objective observations, information from

police reports, if such are available, and consideration of the modes or patterns of

operation of certain kinds of law breakers.” United States v. Cortez, 449 U.S. 411,

418 (1981).




        **
          The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
                                            2
      Defendants would have us employ the type of “divide and conquer” analysis

which the Supreme Court has repeatedly instructed us to avoid; that is, the defendants

ask us to analyze each individual factor noted by the officers and suggest it should be

given no weight because it could also be consistent with innocent behavior or have an

innocent explanation. See, e.g., United States v. Arvizu, 534 U.S. 266, 274 (2002);

Berber-Tinoco, 510 F.3d at 1087-89. We will instead consider the entire context

presented to the officers, with special attention to the factors we have previously

highlighted in border stops, including:

      (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; (5) behavior of the driver, including obvious attempts to
      evade officers; (6) appearance or behavior of passengers; (7) model and
      appearance of the vehicle; and, (8) officer experience.

United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (internal

quotation marks and citation omitted). We must also give due weight to inferences

drawn by local law enforcement officers, who may make reasonable deductions and

inferences based on experience and training that may elude the average citizen.

Arvizu, 534 U.S. at 273.

      Here, the area was extremely close to the border, there had been significant

alien and drug trafficking in the Gringo Pass area, and the characteristics of the area

(especially the wash to the rear) made it a frequent staging area for such crimes. The


                                          3
vehicle drew the attention of border agents because of unusual traffic patterns, being

left unattended in the parking lot for at least two and a half hours, when most traffic

in the area was transient and stayed no longer than thirty to forty-five minutes. The

car was also determined to be a rental vehicle, from a company known to be popular

among drug smugglers. When the driver and passenger appeared to claim the car after

dark, their behavior also aroused suspicions because they drove slowly past the gas

pumps as if moving the vehicle to get gas, but actually proceeded to the rear of the gas

station and out of view for ten to fifteen minutes (consistent with behavior the officers

had previously observed by smugglers who were trying to get near the wash without

drawing attention to their car). When back in view and actually gassing up, the

passenger appeared to be rearranging something in the backseat of the vehicle.

         When viewed collectively, as they must be, these facts give rise to a

reasonable suspicion that criminal activity may have been occurring, sufficient to

justify the stop of the vehicle. Reasonable suspicion may be established solely on the

basis of inferences from otherwise innocent behavior, as it was in Terry v. Ohio, 392

U.S. 1, 5-6 (1968), and as it is here. Further, the district court did not clearly err in

making these factual findings.

      AFFIRMED.




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