                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         DEC 22 1998
                                  PUBLISH
                                                                     PATRICK FISHER
              UNITED STATES COURT OF APPEALS                                  Clerk
                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,

 v.
                                                       No. 97-2376
 TORIBIO MIGUEL DE LA CRUZ-
 TAPIA,

       Defendant-Appellee,


                   Appeal from the United States District Court
                         for the District of New Mexico
                            (D.C. No. CR-97-462-LH)


Presiliano Torrez, Assistant U.S. Attorney (John J. Kelly, United States Attorney,
and Steven C. Yarbrough, Assistant U.S. Attorney, on the brief), Las Cruces, New
Mexico, for Plaintiff-Appellant.

Robert J. McDowell, Assistant Federal Public Defender (Ann Steinmetz, Federal
Public Defender, with him on the brief), Las Cruces, New Mexico, for Defendant-
Appellee.


Before SEYMOUR, Chief Judge, PORFILIO and BRORBY, Circuit Judges.


SEYMOUR, Chief Judge.
      The United States government appeals from an order of the district court

granting defendant Mr. De la Cruz-Tapia’s motion to suppress evidence seized

during a United States Border Patrol stop of his vehicle. The district court held

that the facts did not support a reasonable suspicion for the stop, thereby violating

Mr. De la Cruz-Tapia’s Fourth Amendment right. We affirm.

                                          I.

      On July 9, 1997, around 8 a.m., Agent Joel Nickles of the United States

Border Patrol was conducting a roving patrol on Interstate 25 south of Truth or

Consequences, New Mexico. Agent Nickles was parked in an unmarked jeep in

the median when Mr. De la Cruz-Tapia drove by in a 1977 Chevrolet. Agent

Nickles observed that Mr. De la Cruz-Tapia was an Hispanic male sitting in an

upright position and staring straight ahead. Agent Nickles caught up to the

vehicle, and drove along side it while he radioed for a license plate check.

      Before Agent Nickles received any information from the check, the vehicle

exited into the town of Truth or Consequences at Exit 79. Agent Nickles, who

was in the left lane of traffic at the time, was unable to follow the vehicle. He

subsequently made a u-turn in the median and took Exit 79 southbound into Truth

or Consequences in search of the vehicle.

      Agent Nickles located the vehicle parked in plain view in the parking area

of a Chevron gas station. The trunk and hood were open and Mr. De la Cruz-


                                         -2-
Tapia was standing in front of the car. Agent Nickles pulled into a nearby

parking lot to observe the situation. Agent Nickles received information over the

radio that the vehicle was registered to an Antonio Torres in Columbus, New

Mexico, that the vehicle was not stolen, and that the vehicle had crossed the

United States/Mexico border three times in the past 72 hours.

      After spending a period of time at the gas station, Mr. De la Cruz-Tapia

closed the hood and trunk, got into his car, and resumed northbound travel on

Interstate 25. Agent Nickles radioed another border patrol agent in a marked unit

and requested that he stop Mr. De la Cruz-Tapia. Mr. De la Cruz-Tapia’s vehicle

was stopped and searched near Exit 83 on Interstate 25, and hidden bundles of

marijuana were found.

                                         II.

      On appeal of a motion to suppress, we accept the district court’s factual

findings unless clearly erroneous and view the evidence in the light most

favorable to the prevailing party, here Mr. De la Cruz-Tapia. See United States v.

Downs, 151 F.3d 1301, 1302 (10th Cir. 1998) (citing United States v. Maden, 64

F.3d 1505, 1508 (10th Cir. 1995)); United States v. Wood, 106 F.3d 942, 945

(10th Cir. 1997). “[A] finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v.


                                         -3-
United States Gypsum Co., 333 U.S. 364, 395 (1948). “The reviewing court

oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the

role of the lower court. . . . Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (citations omitted).

      “‘The ultimate determination of reasonableness under the Fourth

Amendment is, however, a conclusion of law that we review de novo.’” United

States v. Vasquez-Pulido, 155 F.3d 1213, 1215 (10th Cir. 1998) (quoting United

States v. Anderson, 981 F.2d 1560, 1566 (10th Cir. 1992)), cert. denied, 119 S.

Ct. 437 (1998). We have held that “[i]n determining whether reasonable

suspicion exists to justify stopping a vehicle, a court must consider the totality of

the circumstances.” United States v. Barbee, 968 F.2d 1026, 1028 (10th Cir.

1992) (citing United States v. Sokolow, 490 U.S. 1, 8 (1989)); see also United

States v. Pollack, 895 F.2d 686, 689-90 (10th Cir. 1990). “[I]llegal activity does

not depend upon any one factor, but on the totality of the circumstances.” Wood,

106 F.3d at 946. Any one factor may be consistent with innocent travel, but the

factors must be “taken together.” Sokolow, 490 U.S. at 9.

      In examining the totality of the circumstances, “[c]ommon sense and

ordinary experience are to be employed and deference is to be accorded to a law

enforcement officer’s ability to distinguish between innocent and suspicious


                                         -4-
actions.” Wood, 106 F.3d at 946 (citation omitted). However, the officer must

articulate more than an “‘inchoate and unparticularized suspicion or “hunch.”’”

Sokolow, 490 U.S. at 7 (quoting Terry v. Ohio, 392 U.S. 1 (1968)). Moreover, we

have held that “‘[s]ome facts must be outrightly dismissed as so innocent or

susceptible to varying interpretations as to be innocuous.’” Wood, 106 F.3d at

946 (quoting United States v. Lee, 73 F.3d 1034, 1039 (10th Cir. 1996)).

      We frequently have been asked to review the legality of border patrol stops.

See United States v. Monsisvais, 907 F.2d 987, 989 (10th Cir. 1990). While legal

standards do not change between reviewing the denial of a motion to suppress and

the grant of a similar motion, we recognize that in the latter situation there may

appear a false conflict. Viewing the evidence in the light most favorable to the

prevailing party may seem to conflict with the deference owed to the law

enforcement agent’s judgment. We do not find this position untenable. Our

standard of review is settled. The facts must be viewed in the light most

favorable to the prevailing party, Mr. De la Cruz-Tapia. Unless the district court

was clearly erroneous in judging the testimony and credibility of Agent Nickles,

we will not duplicate the district court’s work by superimposing our own fact

findings. In the de novo review of reasonable suspicion, we give due deference to

Agent Nickles.




                                         -5-
                                        A.
                                 Factual Findings

      In applying the articulated standard of appellate review to the instant case,

we look to the district court’s extensive written findings. The record shows that

Agent Nickles relied upon the following factors in deciding to stop Mr. De la

Cruz-Tapia: (1) the type of car he was driving; (2) his failure to look at Agent

Nickles when he drove by; (3) his abrupt exit from the interstate; (4) his behavior

at the gas station; and (5) the fact that the vehicle had crossed the international

border at Columbus three times in the past three days. Rec., vol. I, doc. 29 at 3.

The district court addressed the five points and we will review each finding in

turn for clear error.

      (1) Car Type

      The government suggests the age and size of the car is a significantly

suspicious factor. Agent Nickles testified that “[o]lder model vehicles like this

one are consistent with the trend toward illegal aliens and drug trafficking.” Rec.

vol. II, at 31. The district court, however, noted Agent Nickles’ later testimony

that “there’s a lot of older model cars on the road.” Id. at 54. The agent stated

that characteristics related to alien and drug transport included heavily-loaded

backends and additional passengers. But the evidence indicated that the

Chevrolet did not appear heavily loaded, and had no passengers. The car did not

swerve or speed, and was legally registered. The district court found nothing

                                         -6-
unusual about the car, and found that the make and model were limited in

significance. We find nothing in the record to contradict these findings of fact.

      (2) Lack of Eye Contact

      The government also argues that Mr. De la Cruz-Tapia’s lack of eye contact

was suspicious, evasive behavior. The government’s argument turns on the

factual inference that the driver actually recognized Agent Nickles as part of the

border patrol. To the contrary, the district court found that Mr. De la Cruz-Tapia

did not know of Agent Nickles’ position, and accordingly, discounted the

behavior as non-evasive. The evidence shows Agent Nickles drove an unmarked

jeep, and he testified he was unsure the driver recognized him. On cross-

examination, Agent Nickles was asked, “Even as you’re following and you pull up

kind of catty-corner to him, you’re not even sure then if he is able to recognize

you as a border patrol agent?” To which he responded, “I can’t say for sure that

he recognized me, no.” Id. The only visible part of Agent Nickles uniform was a

border patrol baseball cap. Since Mr. De la Cruz-Tapia stared straight ahead, it is

plausible he did not see the cap. The district court found it unlikely that Mr. De

la Cruz-Tapia had seen the car from two lanes away on the interstate.

      The district court also noted that Agent Nickles undermined his grounds for

suspicion when he testified that he believed both eye contact and lack of eye

contact constituted suspicious behavior. On cross-examination, Agent Nickles


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testified, “I thought it was suspicious the way he stared straight ahead.” Id. at 51.

The cross-examiner then asked, “Had he looked at you, would you have had any

concerns?” Id. at 52. To which Agent Nickles replied, “Possibly, depending on

how he looked at me.” 1 Id.

      Under these circumstances, the inference of non-recognition and the

credibility of Agent Nickles could be interpreted in favor of Mr. De la Cruz-Tapia

without offending common sense. As such, the district court’s choice of

interpretation is not clearly erroneous.

      (3) Abrupt Exit

      The government’s argument of evasive behavior based on Mr. De la Cruz-

Tapia’s abrupt exit from the interstate turns again on Mr. De la Cruz-Tapia’s

recognition of Agent Nickles as a member of the border patrol. As discussed

above, we do not reverse the district court’s finding to the contrary. In addition,

the district court concluded that Mr. De la Cruz-Tapia’s driving implicated

ordinary rather than evasive behavior since the evidence showed Exit 79 is an

abrupt exit. Agent Nickles, in surveillance of the Chevrolet, missed the exit

himself and had to make a u-turn. The court discounted Agent Nickles testimony



      1
        The Ninth Circuit has rejected allowing eye contact and avoidance of eye
contact to qualify as suspicious behavior because it “put[s] the officers in the
classic ‘heads I win, tails you lose position.’” United States v. Garcia-Camacho,
53 F.3d 244, 247 (9th Cir. 1995) (citations omitted).

                                           -8-
that he saw no brake lights when Mr. De la Cruz-Tapia exited because given

Agent Nickles’ position along side the Chevrolet, it was unclear that the brake

lights were visible to him. Again, we find the inferences plausible and defer to

the district court’s findings on Agent Nickles’ credibility.

      (4) Gas Station

      The government next argues that Mr. De la Cruz-Tapia’s activity at the gas

station was suspiciously evasive. However, if he did not know he was being

followed by a border patrol agent, the behavior seems innocent. The evidence

supports the district court’s findings in this regard. The court observed that Mr.

De la Cruz-Tapia parked his vehicle in a clearly visible location at the nearest gas

station off Exit 79 and did not attempt to flee after Agent Nickles missed Exit 79.

In response to Agent Nickles testimony that Mr. De la Cruz-Tapia seemed to be

looking around and that he worked under the hood of his car but had no tools, the

district court noted that Agent Nickles arrived later and Mr. De la Cruz-Tapia

could have been doing a number of things under the hood prior to the agent’s

arrival. Once again, in reviewing the record, we are not persuaded the district

court clearly erred in making the inferences it did from the facts presented.

      (5) Multiple Border Crossings

      Finally, the government argues and Agent Nickles testified that the car

crossed the border in an area around Columbus which was a hot spot for illegal


                                         -9-
alien and drug traffic, and that multiple border-crossings triggered suspicion. The

district court, however, emphasized that the vehicle in question was registered in

Columbus and the owner lived there. Citing Agent Nickles’ own testimony that

many people living in border towns work in the United States and legitimately

cross the border daily near their town of residence, the district court found that

the multiple crossings were not out of the ordinary.

                                       B.
                            Reasonableness of the Stop

       We review the reasonableness of Agent Nickles suspicion under a de novo

standard of review. In determining reasonable suspicion, the court must consider

“the totality of the circumstances – the whole picture,” United States v. Cortez,

449 U.S. 411, 418 (1981), and in so doing, must accord due deference to a law

enforcement officer’s ability to recognize suspicious behavior. Wood, 106 F.3d at

946.

       For example, in United States v. Barron-Cabrera, 119 F.3d 1454, 1462

(10th Cir. 1997), the defendant drove a Ryder truck, unaccompanied by another

vehicle driving in tow or in tandem, on a road rarely used for household moves.

The road was reasonably near the Mexican border, and a known smuggling

corridor upon which four vehicles carrying thirty-two aliens had been

apprehended that month. Id. When the driver saw the Border Patrol vehicle, he

became noticeably agitated and then started driving stiffly. Id. His speed

                                         -10-
dropped to ten miles an hour below the speed limit, and he drove over the center

and shoulder lines. Id. These factors in the aggregate created a suspicious

portrait, particularly given deference to the law enforcement agent’s judgment.

The driver’s noticeable agitation and subsequent stiffness is relevant behavior

where the driver recognized he was being followed by a marked Border Patrol

vehicle.

      In the present case, we assess the impact of the factors in the aggregate,

under the totality of the circumstances, incorporating the underlying factual

findings of the district court. Agent Nickles saw a large, old vehicle, the kind a

drug or illegal alien smuggler might use, driving in an area known for drug and

alien smuggling. It was morning, a usual time for traffic. The vehicle was not

heavily loaded, had no passengers, and did not swerve on the road. Agent Nickles

drove an unmarked jeep which the driver did not recognize as a border patrol

vehicle. The driver did not make eye contact as he drove by Agent Nickles. As

Agent Nickles drove along side the car, the driver took Exit 79 off the interstate.

Exit 79 was so sharp, Agent Nickles missed it. The driver parked in the front of

the nearest gas station off the exit, and remained there while Agent Nickles

circled around to catch up with the driver. While Agent Nickles observed from

afar, the driver looked around, looked in the hood and trunk, and re-entered the

highway going in the same direction. The car was legally registered to someone


                                         -11-
in the border town of Columbus, and the car had legally crossed the border at

Colombus three times in three days.

      We conclude in reviewing the aggregate facts, based on the extensive

findings of the district court, that “the mantra ‘totality of the circumstances’

cannot metamorphose these facts into reasonable suspicion.” Wood, 106 F.3d at

948. The district court determined, and we decline to redraw the inference, that

Mr. De la Cruz-Tapia did not know Agent Nickles was a border patrol agent.

Accordingly, the three factors that support the agent’s conclusion that Mr. De la

Cruz-Tapia was evading him, the lack of eye contact, the abrupt exit, and the gas

station activity, become “‘so innocent or susceptible to varying interpretations as

to be innocuous.’” Id. at 946 (quoting Lee, 73 F.3d at 1039). Under the totality

of the circumstances, we hold the remaining factors in the aggregate do not

amount to a reasonable suspicion to stop Mr. De la Cruz-Tapia.

      We AFFIRM the order of the district court granting the motion to suppress

the evidence.




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