UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

JORGE MADROZA-ACOSTA and PEDRO DELGADO,

Defendants - Appellees.	No. 06-2111

(D.C. No. CR-05-2602-MCA)

(D.N.M.)

ORDER AND JUDGMENT*

Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ, Circuit Judge.

The government appeals a district court order granting Jorge Madroza-
Acosta and Pedro Delgado-Fundora's joint motion to suppress evidence. Police Officer Sean Healy, a New Mexico state patrolman, initiated a stop of a vehicle occupied by the two men based on information provided to a police dispatcher by an identified informant, Gary Burns. We conclude that it was not clearly erroneous for the district court to find that Burns did not provide adequate and specific information to the dispatcher about why he suspected the van was engaged in illegal activity. Based on the limited information the district court found Burns' provided to the dispatcher, we conclude that Healy did not have reasonable suspicion to stop the van. Exercising jurisdiction pursuant to 18 U.S.C. § 3731, we AFFIRM.

I

On November 1, 2005, Gary Burns was traveling west on Interstate 40 ("I-
40"), en route to his home in Phoenix, Arizona. He stopped at a convenience store near mile marker 267, where he noticed what he described as an unusual vehicle, a "white, one-ton van with blacked-out windows." When he entered the store, Burns observed numerous "Hispanic-looking" individuals that "appeared to be a concentrated group." After he left the store and returned to his car, he watched those individuals – Burns counted approximately 18 or 19 people – enter the suspicious-looking van. Initially, Burns wrote down the van's license plate number and a brief description of the vehicle's characteristics. After further reflection, he attempted to contact the Border Patrol due to his suspicions that the individuals he saw enter the van were undocumented aliens.

Burns was unable to reach that agency, but was able to successfully contact the New Mexico State Police. Police dispatcher Annissa Ray, a trainee, spoke directly with Burns. A recording of that conversation – which is incomplete due to faulty police recording equipment – reveals that Burns identified himself as "Gary," wanted to report "a lot of illegals [sic] traveling down the highway," told Ray his location, noted that 18 or 19 people were in an overloaded van, and informed Ray that he "had the tag number and everything." Because Ray was a trainee she was not able to input this information into the police computer system. Ray relayed the information Burns supplied to Carmen Leyba, her supervisor, who prepared a "computer aided dispatch" ("CAD") regarding the incident. The CAD report shows that a call was received from a Gary Burns on November 1, 2005 at 12:46 p.m. It identifies his contact number, the activity being reported as "UAD" (or "undocumented aliens"), notes the activity was observed on I-40 near mile marker 267, and indicates that the suspect vehicle, described as a white Chevrolet van with California license plate number 5NVBY479, was last seen traveling west on I-40.

Based upon Burns' tip, Leyba contacted New Mexico State Police Officer Sean Healy, who was stationed in Edgewood, New Mexico. Leyba told Healy that a tipster had observed an unusual number of people enter a white van with California license plates near mile marker 267, and that the van was heading west on I-40. Healy began heading east on I-40 in an effort to intercept the vehicle. While en route, he received additional information that the van had dark-tinted windows, displayed California license plate number 5NVBY479, and was registered to an individual named Juan Perez.

On I-40, near Moriarty, New Mexico, Healy spotted a white van with dark- tinted windows heading west. After turning around, Healy began following the van, but did not engage his emergency lights. Healy testified that the driver looked back at him twice, but noted that this did not qualify as unusual. The van was not speeding or being driven erratically. After Healy trailed the van for approximately four miles, the van properly signaled and exited the highway. Healy followed. When the van entered a truck stop, Healy signaled for the van to stop.

Healy approached the driver, and requested identification from both the driver and front-seat passenger. Because of the nature of the suspected criminal activity, Healy requested back-up assistance. After another police vehicle arrived, Healy asked for documentation from the van's other passengers. None were able to comply. Healy then asked the driver and front-seat passenger about their travel plans. Both stated that they were traveling from Houston, Texas to Los Angeles, California. Although it is unclear exactly when, Healy instructed dispatch to contact the Border Patrol, and shortly thereafter two agents arrived. When those agents confirmed that the van's passengers were undocumented aliens, the agents arrested the entire group.

Both the driver and the front-seat passenger, defendants Madroza-Acosta and Delgado-Fundora, were charged with one count of conspiracy to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I), and four counts of transporting or aiding and abetting the transport of illegal aliens in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(B)(I), and 1324(a)(1)(A)(v)(II). On January 11, 2006 Madroza-Acosta filed a motion to suppress all evidence relating to the seizure and subsequent search of the van. He argued that Healy lacked probable cause or reasonable suspicion to initiate the traffic stop under Terry v. Ohio, 392 U.S. 1 (1968). Delgado-Fundora joined that motion. On March 10, 2006 the district court granted defendants' joint motion. The government now appeals.

II

"In reviewing an order granting 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." United States v. Holt, 264 F.3d 1215, 1228 (10th Cir. 2001) (en banc). We review the ultimate question of whether the officer had reasonable suspicion to stop the vehicle de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996).

Reasonable suspicion does "not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S 266, 274 (2002). Rather, "reasonable suspicion represents a minimum level of objective justification." United States v. Mendez, 118 F.3d 1426, 1431 (10th Cir. 1997) (quotation omitted). Whether an officer has reasonable suspicion to initiate a stop is "not readily, or even usefully, reduced to a neat set of legal rules." United States v. Sokolow, 490 U.S. 1, 7 (1989) (quotation omitted), and is a determination that requires us to apply a "common sense" approach, United States v. Williams, 271 F.3d 1262, 1268 (10th Cir. 2001). Its existence "is dependent upon both the content of information possessed by police and its degree of reliability. Both factors – quantity and quality – are considered in the 'totality of the circumstances – the whole picture.'" Alabama v. White, 496 U.S. 325, 330 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). The central question is whether "[b]ased upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981).

The government does not argue that the border patrol agents had probable cause to arrest the defendants absent the information obtained by Healy. Moreover, the government concedes that the only basis for Healy's stop of the vehicle is the information Burns provided to the dispatcher.1 Thus, based on the
Supreme Court's decision in White, our inquiry in this case is two-fold: (1) What reliable information did Burns provide to the dispatcher? and (2) Was that information sufficient to provide Healy with reasonable suspicion to stop the van?

A

As noted above, we review the district court's factual findings as to what information was provided under the "clearly erroneous" standard. Holt, 264 F.3d at 1228. "[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." Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 573-74.

In assessing the information possessed by a law-enforcement officer at the time of a stop, we apply the "fellow officer" rule. This requires us to look not to what the officer herself knew, but to "the collective knowledge of all the officers involved." United States v. Hinojos, 107 F.3d 765, 768 (10th Cir. 1997). This includes any information that was conveyed by an informant to a police dispatcher. Id.; White, 496 U.S. at 328-30 (1990); United States v. Elkins, 70 F.3d 81, 83 (10th Cir. 1995) ("Tips, even if anonymous, coupled with independent police work, provide reasonable suspicion to warrant an investigative stop.").
Burns spoke only to dispatcher Ray, and thus we must determine what information he conveyed to Ray. Our task on appeal is made more complicated because the district court did not make a specific numbered finding on this point. Reading the opinion as a whole, however, the district court found that only limited information was forwarded by Burns to dispatcher Ray: the van's "color, license [plate] number, [a description that it had] blacked-out windows, [and its] location, direction of travel, and number of occupants."

Although Burns testified that he provided additional information to dispatcher Ray about why he suspected the van's occupants were undocumented,2 the district court rejected this testimony, stating "I find that Mr. Burns did not convey enough specific information about the reasons why he believed the van and its occupants were suspicious." Importantly, the government does not challenge the district court's finding that Burns did not provide information about his suspicions. Based on our independent review of the record as a whole, viewing the facts in favor of the defendants as we are required to do, see Holt, 264 F.3d at 1228, we cannot say that we have a "definite and firm conviction" that the district court's finding on this point was erroneous. See Anderson, 470 U.S. at 573. Neither the CAD report nor the recording of Burns' conversation with dispatcher Ray indicates that Burns provided information about why he suspected the van's occupants were undocumented aliens. Moreover, neither Leyba nor Healy provided clear testimony on this point. The only testimony indicating that Burns provided his reasoning is Burns' own, which the district court found not to be supported by the record.3

Accordingly, under the very narrow standard with which we review the district court's factual findings, we affirm the district court's finding that Burns provided but the following limited, reliable4 information to dispatcher Ray: the van's "color, license [plate] number, [a description that it had] blacked-out windows, [and its] location, direction of travel, and number of occupants."

B

We turn now to whether Healy had reasonable suspicion to stop the van based on the limited information, described in the previous paragraph, Burns supplied to dispatcher Ray. The district court ruled that this limited information was insufficient to establish reasonable suspicion. Burns stated that a large number of Hispanic individuals were traveling west on I-40 in a van with dark-
tinted windows, and informed the dispatcher that he suspected they were undocumented, but never told the dispatcher why he believed they were undocumented. Burns apparently formed his suspicions based on his additional observations discussed above, and indeed these suspicions may give rise to an officer's reasonable suspicion in support of a stop, but the district court found that this information was not communicated to dispatcher Ray.5 Based on the limited information that was provided to the dispatcher, we conclude that this does not present a legal basis to stop the van. At best, at the time Healy stopped the van he had "inchoate suspicions and unparticularized hunches" about whether the occupants of the van were engaged in illegal activity. See United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (noting that "inchoate suspicions and unparticularized hunches . . . do not provide reasonable suspicion.") (citing United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997)). Thus, Healy's stop of the van under these circumstances offended the Fourth Amendment.

III

Accordingly, we AFFIRM. Judge McWilliams dissents.

Entered for the Court

Carlos F. Lucero

Circuit Judge