                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 14 2010

                                                                        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. 09-10033

             Plaintiff - Appellee,               D.C. No. 4:08-cr-00053-FRZ-
                                                 BPV-1
  v.

MANUEL LOPEZ-IBARRA,                             MEMORANDUM *

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                           Submitted January 11, 2010 **
                             San Francisco, California

Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.

       Manuel Lopez-Ibarra (“Lopez”) appeals his conviction for possession with

intent to distribute 153 kilograms of marijuana, arguing error in the district court’s

denial of his suppression motion. We affirm.



        *
             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).
      An investigatory detention–a brief, warrantless seizure by police officers–is

lawful if based on reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 20-21 (1968). A

seizure occurs at the moment when “police physically subdue the subject.” United

States v. Santamaria-Hernandez, 968 F.2d 980, 983 (9th Cir. 1992) (defendant not

seized for Fourth Amendment purposes “until he was physically apprehended by the

border patrol agents at the end of the chase”); see also California v. Hodari D., 499

U.S. 621, 628-29 (1991); Brower v. County of Inyo, 489 U.S. 593, 599 (1989).

Submission to a police officer’s show of authority is determined by the physical stop

and surrender of the defendant, and not by any other movements or indications. See

United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir. 1994).

      Here, a seizure did not occur when Peralta turned on his overhead lights and

sirens, because Lopez failed to stop. For purposes of the Fourth Amendment, the only

seizure that occurred was when Lopez swerved and exited his vehicle after the

extended car chase. Therefore, the court was free to consider Lopez’s subsequent

flight from Peralta in its evaluation of whether Peralta had reasonable suspicion to

seize Lopez. See Santamaria-Hernandez, 968 F.2d at 983.

      Reasonable suspicion existed prior to the stop. “[T]he Fourth Amendment is

satisfied if the officer’s action is supported by reasonable suspicion to believe that

criminal activity ‘may be afoot,’” United States v. Arvizu, 534 U.S. 266, 273 (2002)


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(citing United States v. Sokolow, 490 U.S. 1, 7 (1989)), which requires an examination

of “the totality of the circumstances . . . to see whether the detaining officer has a

‘particularized and objective basis’ for suspecting legal wrongdoing.” Id. (citing

United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Officers are permitted “to

draw on their own experience and specialized training to make inferences from and

deductions about the cumulative information available to them that might well elude

an untrained person.” Arvizu, 534 U.S. at 273 (internal quotation marks omitted).

      The Supreme Court has set forth several non-exclusive factors giving rise to

reasonable suspicion in the context of border stops, including:

      (1) characteristics of the area in which the vehicle was encountered; (2)
      proximity to the border; (3) usual traffic patterns on a particular road;
      [(4)] previous experience with alien traffic; [(5)] recent illegal border
      crossings in the area; [(6)] erratic or evasive driving behavior; [(7)]
      aspects of the vehicle; and [(8)] behavior or appearance of the driver.

United States v. Diaz-Juarez, 299 F.3d 1138, 1141 (9th Cir. 2002) (citing United States

v. Brignoni-Ponce, 422 U.S. 873, 884-85 (1975)). Nearly all of these factors were

present in Peralta’s stop of Lopez here, and therefore, Peralta had reasonable suspicion

to stop Lopez’s vehicle.

      Peralta first encountered Lopez at approximately 26 miles from the border, see

Diaz-Juarez, 299 F.3d at 1142, Illinois v. Wardlow, 528 U.S. 119, 124 (2000), on a

highway leading from Nogales, a border town that, from Peralta’s experience on the


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Border Patrol, frequently served as a location for illegal alien activity and drug

smuggling. See Arvizu, 534 U.S. at 277; Santamaria-Hernandez, 968 F.2d at 984;

United States v. Garcia-Barron, 116 F.3d 1305 (9th Cir. 1997). In addition, Lopez’s

car was heavily-loaded or riding low, with only one visible driver, and was traveling

in tandem with an SUV. See Brignoni-Ponce, 422 U.S. at 885; United States v.

Franco-Munoz, 952 F.2d 1055, 1057 (9th Cir. 1991); United States v. Medina-Gasca,

739 F.2d 1451, 1453 (9th Cir. 1984); United States v. Bugarin-Casas, 484 F.2d 853,

855 (9th Cir. 1973).

      Also, the windows of Lopez’s car were fogged which, based on Peralta’s

training, indicated that more than one person might be concealed within the vehicle.

See Arvizu, 534 U.S. at 276. Lopez also fled once Peralta turned on his overhead lights

and sirens. See United States v. Smith, 217 F.3d 746, 750 (9th Cir. 2000); Santamaria-

Hernandez, 968 F.2d at 984; United States v. Robert L., 874 F.2d 701, 704 (9th Cir.

1989); Medina-Gasca, 739 F.2d at 1453.

      We need not reach whether, despite any initial stop, the taint of illegality was

purged by Lopez’s subsequent flight. While it is theoretically possible that Peralta

lacked reasonable suspicion to stop Lopez prior to turning his overhead lights on, this

is irrelevant because Lopez in fact did not yield. See Hernandez, 27 F.3d at 1407.

      AFFIRMED.


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