                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 23 2010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. 09-50131

             Plaintiff - Appellee,               D.C. No. 3:07-cr-03106-BEN-1

  v.
                                                 MEMORANDUM *
MARIA VASQUEZ,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted February 5, 2010
                               Pasadena, California

Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.

       Defendant-Appellant Maria Vasquez appeals the district court’s denials of

her motion to suppress and motion to dismiss the indictment. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm in part and reverse in part.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      On a weekday morning in southern California, a border patrol agent

observed two Hispanic males get into a gray Ford Expedition and drive to an

AutoZone parking lot. A gold Chevrolet Avalanche arrived a short time later and

parked next to the Expedition. The male passenger from the Expedition exited the

car to speak with the driver of the Avalanche and, subsequently, the driver of the

Avalanche got into the rear seat of the Expedition. After the driver of the

Avalanche returned to his car, two Hispanic females from the Avalanche, later

identified as undocumented aliens, switched vehicles. The Expedition, with the

two female passengers, left the AutoZone parking lot and drove to a cul-de-sac in a

residential area.

      At the cul-de-sac, the two women exited the Expedition and got into a blue

Chevrolet Astro Minivan. The minivan drove to a Jack in the Box restaurant

nearby, at which point the driver spoke to a man in a black truck. The minivan

then left Jack in the Box and drove onto Interstate 5, headed north. The border

patrol agent who observed these events requested a traffic stop of the minivan, and

Vasquez, who was driving the minivan, was pulled over a short time later.

      Before the district court, the government asserted in its proffer of facts that

the area was notorious for alien smuggling. Vasquez disputed this fact and

requested an evidentiary hearing. The government opposed such a hearing, instead


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stating that reasonable suspicion existed based on the vehicle transfers. The

district court deemed the description of the area as notorious for alien smuggling

“somewhat vague and somewhat broad” and noted that “anything south of Los

Angeles, east to El Paso, is probably an area notorious for alien smuggling.”

Finding no facts in dispute, however, the district court denied Vasquez’s motion to

suppress without holding an evidentiary hearing.

      We review a district court’s denial of a motion to suppress de novo and the

underlying factual findings for clear error. United States v. Delgado, 545 F.3d

1195, 1200 (9th Cir. 2008), cert. denied, 129 S. Ct. 1383 (2009).

      The Fourth Amendment protects against unreasonable searches and seizures

by the government and “applies to all seizures of the person, including seizures that

involve only a brief detention short of traditional arrest.” United States v.

Brignoni-Ponce, 422 U.S. 873, 878 (1975). A brief investigatory stop does not

violate the Fourth Amendment, however, “if the officer has a reasonable suspicion

supported by articulable facts that criminal activity ‘may be afoot.’ ” United States

v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).

To evaluate reasonable suspicion, the court considers whether the totality of the

circumstances show that the officer had “a particularized and objective basis for

suspecting the particular person stopped of criminal activity.” United States v.


                                     Page 3 of 5
Cortez, 449 U.S. 411, 417-18 (1981). The facts need not rise to the level of

probable cause, but “an officer’s reliance on a mere ‘hunch’ is insufficient to

justify a stop.” United States v. Arvizu, 534 U.S. 266, 274 (2002) (quoting Terry,

392 U.S. at 27).

      Here, the finding of reasonable suspicion rested on the fact that two Hispanic

women in southern California switched cars twice and ultimately headed north on

I-5. The exchanges between the cars took place in broad daylight. The

government offered no facts suggesting, for example, that the officers found the

types of vehicles suspicious or that the drivers or passengers acted in any evasive

or unusual manner, or that the cul-de-sac particularly was known to house alien

smugglers. While transferring between cars may be odd, it does not give rise to “a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.” Cortez, 449 U.S. at 417-18.

      Having failed to set forth sufficient facts to support a finding of reasonable

suspicion, the government suggested at oral argument that we remand the matter

for an evidentiary hearing. Not only did the district court find an evidentiary

hearing unnecessary because no facts were in dispute, see United States v. Howell,

231 F.3d 615, 620 (9th Cir. 2000), but the government opposed the request for a

hearing. Thus, no hearing is warranted now.


                                     Page 4 of 5
      Because the district court erred in finding that reasonable suspicion

supported the stop, we reverse the district court’s denial of the motion to suppress

and remand for further proceedings consistent with this opinion. Because we

reverse the district court’s denial of the motion to suppress, we do not address the

district court’s denial of the motion to dismiss the indictment.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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