UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNTIED STATES OF AMERICA,

Plaintiff/Appellee,

v.

ALBERTO ZAMBRANO,

Defendant/Appellant.

No. 02-2173

(New Mexico)

(D.Ct. No. CR 01-1398 BRB/JC)

ORDER AND JUDGMENT*

Terri J. Abernathy, Assistant U.S. Attorney (David C. Iglesias, United States Attorney with her on the brief), Las Cruces, New Mexico, for Plaintiff/Appellee.

James W. Klipstine, Jr. of James W. Klipstine, Jr., L.L.C., Hobbs, New Mexico, for Defendant/Appellant.

Before LUCERO, O'BRIEN, and TYMKOVICH, Circuit Judges.

Mr. Alberto Zambrano was stopped by Border Patrol Agent David Collier while driving on New Mexico Highway 54, approximately seventy miles north of the Paso Del Norte Port of Entry in El, Paso, Texas. Six kilograms of cocaine were found wrapped in bundles inside the gas tank of his black Mercury Cougar. He was charged with possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). Mr. Zambrano moved to suppress the cocaine, arguing Agent Collier did not have reasonable suspicion to stop his vehicle as required by the Fourth Amendment. The district court denied the motion in a comprehensive and thoughtful decision from the bench. The judge made factual findings and pointed to several particular facts which, collectively, supplied the requisite reasonable articulable suspicion for the stop. Thereafter, Mr. Zambrano entered a guilty plea, specifically reserving his right to appeal the denial of his motion to suppress. Our jurisdiction to review his timely appeal arises pursuant to 28 U.S.C. § 1291.

Reasonableness under the Fourth Amendment is a conclusion of law triggering a de novo review. United States v. Gandara-Salinas, 327 F.3d 1127, 1129 (10th Cir. 2003). On review, evidence is considered in the light most favorable to the prevailing party, and the district court's findings of fact are accepted unless clearly erroneous. Id. Our independent review of the record prompts us to observe that the traffic stop in this case was marginal, surviving largely because of our deference to the trial court's fact finding. Given the facts found, including credibility determinations, the stop was reasonable and we affirm the district court's denial of the motion to suppress.

The Fourth Amendment protects against unreasonable searches and seizures by the government, including protections from unjustified investigatory stops of persons and vehicles. United States v. Arvizu, 534 U.S. 266, 273 (2002). A border patrol investigatory stop is justified and will not offend the Fourth Amendment if it is supported by reasonable suspicion that criminal activity may be afoot. Id. A detaining officer must have a particularized and objective basis for suspecting legal wrongdoing. Id. "Border patrol agents may thus stop vehicles if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion." Gandara-
Salinas, 327 F.3d at 1129. (citations and quotations omitted). Significantly, the calculus of reasonable suspicion must take into account the totality of the circumstances because the legal concept is "somewhat abstract." Arvizu, 534 U.S. at 274.

At the forefront of our discussion, we acknowledge the linchpin of Mr. Zambrano's argument. Our cases recognize that a person's reaction to the presence of law enforcement officers can legitimately trigger suspicion.1 Agent Collier described Mr. Zambrano's behavior as consistent with a driver who recognized him as a member of the law enforcement community. But, Mr. Zambrano testified that he did not realize he was being followed by a law enforcement agent, and therefore, his reactions, if any, observed by the agent were innocent. Without knowledge that he was being watched by a border patrol agent, he argues there can be no reasonable suspicion based upon reactive behavior, and the stop was consequently illegal.

In assessing the totality of the circumstances, the district court succinctly described the factual mosaic supporting the agent's suspicions and justifying the traffic stop. Recognizing first that law enforcement must "have more than a hunch" to instigate an investigatory stop, the court minimized the weight given to the agent's testimony that Mr. Zambrano looked "very carefully" at the agent's vehicle when the two cars first passed each other going in opposite directions on the two-lane highway. (Transcript from Motion Hearing at 108). While this may have piqued the agent's interest and caused the agent to turn and follow the black Mercury, we agree with the district court that, standing alone, Mr. Zambrano's initial glance at the agent's vehicle was not enough to justify a traffic stop. But there is more.

After turning around and catching up with Mr. Zambrano's vehicle, the agent proceeded to follow closely behind and noticed several things indicative of a driver who was aware of the presence of law enforcement. The agent testified that Mr. Zambrano was driving ten miles per hour below the posted speed limit. He appeared nervous, looking at the agent's car several times in the rear view mirror, and when the agent moved into oncoming traffic to pass the Mercury, Mr. Zambrano did not turn to look, but appeared to be gripping the steering wheel tightly. After passing Mr. Zambrano's car, it became apparent to the agent that the Mercury was slowly drifting farther behind. The agent pulled to the side of the road, stopped, waited for Mr. Zambrano to pass in front of him, and then initiated the investigatory stop. Even if we assume, contrary to his testimony2, that Mr. Zambrano actually recognized the agent's unmarked vehicle to be that of law enforcement, it is still an uncomfortable stretch to believe the agent possessed "a particularized and objective basis for suspecting legal wrongdoing" based only on Mr. Zambrano's behavior.3 Arvizu, 534 U.S. at 273. But, again, there is more.	Most noteworthy to the district court, and we agree, are the reasonable inferences the agent drew based on his knowledge of the circumstances and experience as a border patrol agent in southern New Mexico.4 In particular, while following Mr. Zambrano, the agent requested a vehicle registration check on the Mercury's license plate. Although the car had not been reported stolen, a lane crossing check,5 provided by United States Customs, revealed the Mercury had crossed the international border from Mexico to the United States approximately an hour and a half earlier. The agent also learned the vehicle had not been sent to the secondary inspection area at the port of entry, which indicated it had not been searched when it crossed the border. Significantly, both to us and to the district court, the border patrol checkpoint on this particular highway was closed due to construction. From his experience, the agent knew drug cartels from the El Paso area were moving narcotics on this highway, taking advantage of the closed checkpoint.6

Many of the factors in this case are markedly similar to those noted as apposite in Gandara-Salinas, 327 F.3d 1127. In addition to "reactive behavior" and other agent specific observations and inferences Gandara-Salinas accepted environmental factors as significant in the reasonable suspicion equation, viz., a recent border crossing (in that case, the previous day; here, less than two hours), a stretch of road notorious as a drug corridor, the temporary closure of a fixed border checkpoint, and reliable information that drug and alien smugglers closely monitor and exploit checkpoint closures. Id. at 1131.

The agent specific observations, while marginal, must be considered in combination with environmental factors. The cumulative impact of disparate facts viewed from a global perspective permit Agent Collier to have reasonably inferred that Mr. Zambrano had just entered the United States from Mexico, had not been subject to search at the border, and had chosen to travel on this particular highway — known as a corridor for drug smuggling — in an attempt to circumvent the closed checkpoint.

Giving due weight to the factual inferences drawn by the agent, including Mr. Zambrano's reactions, or lack thereof, to the agent's presence,7 and crediting the district court's comprehensive and logical findings, we hold that Agent Collier had a reasonable and articulable suspicion to believe Mr. Zambrano was engaged in illegal activity.

We AFFIRM the district court's denial of the motion to suppress.

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge