(CN) - Border Patrol agents were justified in stopping and searching the truck of a suspected smuggler driving erratically north of the U.S.-Mexico border, the full 9th Circuit ruled.
The federal appeals court in Seattle voted 8-3 that the eight kilograms of cocaine found during the search of Rufino Ignacio Valdes-Vega's Ford F-150 could be admitted into evidence.
A border patrol agent said he saw Valdes-Vega weave in and out of traffic at "well over" 90 miles an hour, making at least 10 "erratic lane changes without signaling."
As Valdez-Vega approached the northernmost checkpoint on Interstate 15, about 70 miles north of the border, he immediately slowed down to the 70 mile-per-hour speed limit, the agents said. The truck also had Baja California license plates.
They pulled him over just south of the checkpoint, and he allowed them to search his truck, where they found enough cocaine to charge him with intent to distribute.
Valdes-Vega moved to suppress the drug evidence, claiming the stop violated his constitutional protection against unreasonable searches.
A federal judge rejected his motion, but a three-judge panel of the 9th Circuit reversed. After rehearing the case before a full circuit panel, the 9th Circuit ruled that the stop was legal.
In sum, the facts show that two experienced border patrol agents observed a truck with foreign plates driving in a suspicious manner in an area frequented by smugglers. The total circumstances garnered the attention of the agents," Judge Ronald Gould wrote for the majority. "These circumstances align with factors that the Supreme Court has indicated may be significant in evaluating a roving border patrol stop, and we conclude that they are probative here."
Gould said the agents had an an "objective and particularized suspicion" that Valdes-Vega was smuggling people or drugs.
In a terse dissent, Judge Harry Pregerson rejected the majority's claim that Valdes-Vega's erratic driving was "perhaps one of the most important factors in the total circumstances here."
"Such driving, plus defendant's Hispanic appearance, plus his eyes on the road, plus his driving a clean Ford F-150, plus the Baja plates, did not create a reasonable suspicion that criminal activity was 'afoot,'" Pregerson wrote.
Dissenting Judge Stephen Reinhardt wrote separately to emphasize his belief that the majority "errs in ignoring the distinction between the innocent acts in this case and those in [United States v.] Arvizu."
Judge Sidney Thomas joined the dissenting opinions.
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