Filed 4/6/18 P. v. Lopez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS LOPEZ,

Defendant and Appellant.


E066525

(Super.Ct.No. INF1403049)

OPINION


APPEAL from the Superior Court of Riverside County. Victoria E. Cameron, Judge. Reversed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jose Luis Lopez of transporting for sale more than 10 kilograms each of heroin and methamphetamine based on evidence U.S. Customs and Border Protection agents (border patrol) acquired incident to a stop on Interstate 10 near the California-Arizona border. Lopez sought to exclude the evidence, arguing the agents did not have reasonable suspicion he was engaged in criminal activity when they stopped him.
One of the agents explained they decided to stop Lopez because he was alone, driving an older-model minivan in a “highly used” smuggling corridor, appeared to push himself back behind the door frame when he first passed the agents, changed lanes as they approached from behind in the fast lane, did not look at the agents as they drew alongside him, drove at 50 miles per hour in a 70 mile-per-hour zone, and had recently crossed the United States-Mexico border. The trial court held the stop was justified, and Lopez appeals.
We conclude the agents based their decision to stop Lopez on insufficient evidence he was engaged in criminal activity. At bottom, they acted on a hunch, which is improper, even though—in this case—their hunch proved correct. We therefore reverse the conviction, and remand for further proceedings.
I
FACTUAL BACKGROUND
A. Lopez’s Backstory
Lopez testified in his own behalf at trial. Lopez is a United States citizen and had lived in Somerton, Arizona, until 2014, when he moved with his wife and two children to Santa Clara, Mexico. Lopez had worked as a heavy equipment operator, but at the time of these events was unemployed.
Lopez said he was in his yard in Mexico on the morning of October 27, 2014, when a man he knew in passing greeted him from outside his gate. The man said, “I’m going to need for you to do me a favor.” Lopez said the man’s demeanor was strange, and he said he would come by in a few days to tell him about it. Lopez had previously told the man he was a United States citizen.
The man returned the morning of October 29, 2014 and told Lopez he needed the favor that day. He said, “You’re going to go to Quartzsite, Arizona. Somebody’s going to be waiting for you. You’re going to put something in your vehicle. You’re going to give them your vehicle. And from there you’re going to head down to Riverside, California.” He said Lopez didn’t need to know anything more.
Lopez said the man’s demeanor was different than in previous meetings—he sounded very serious and did not seem neighborly. Lopez asked why he should do it, and the man said, “If you want to keep your family alive, and yourself, you will do me this favor.” Lopez did not see a weapon, but believed the man was armed. Lopez said he believed contacting the police or refusing to comply would put his family and himself in danger.
The man did not tell Lopez his exact destination in Quartzsite or Riverside, nor did he say who would meet Lopez. “You are to see the least you can see. You’re to speak the least you can speak. Do not talk to nobody.” He told Lopez to leave in about one hour for Quartzsite, specified the route he should take, and warned him not to talk to anyone. “Don’t try to get smart. Don’t try to get your family out of Mexico because you won’t make it.” Lopez said he took a shower, hugged his family, told them he had to go to the United States, and left with two shirts and some money from his savings.
Lopez said he knew there were U.S. agencies he could call for help, but he feared putting his family in danger. Several minutes before Lopez got to Quartzsite, the man called and told him to be alert for someone waiting for his arrival. Near Quartzsite, a parked SUV flashed its high beams and Lopez pulled over. The SUV pulled up behind Lopez’s minivan and a man directed Lopez to get out of his vehicle and into the SUV. Lopez did as he was told. One man drove Lopez’s minivan toward Quartzsite and the other drove Lopez in the SUV. After driving for approximately 20 minutes, they returned to the same spot on the side of the road. The men directed Lopez to get back in his minivan, head to Riverside, and await a phone call. Lopez was upset, stressed, and afraid. He stopped at McDonald’s to get something to eat and then drove towards Riverside. He said he did not consider driving his minivan to the police station because he feared for his family’s life.
B. The Decision to Stop Lopez
Agent Wilson testified for the prosecution at a hearing on Lopez’s motion to suppress. At the time of these events, he had been an agent for two and a half years. Wilson said on the night of October 29, 2014, he was observing traffic on Interstate 10 just west of the agricultural station on the border between Arizona and California. Wilson and his partner, Agent Hollywood, sat in their border patrol vehicle on the south side of the westbound lanes, situated perpendicular to the traffic lanes. It was dark and the area was not well-lit, but they had their headlights and an overhead light shining across the highway. Wilson said the lights allowed them to see the interiors of passing cars for a space of about 10 to 15 feet.
About 7:45 p.m., Agent Wilson noticed an older model minivan—later identified as a 1998 Ford Windstar—coming through the agricultural station. Wilson said he could see the driver when the car passed through his lights. He said Lopez was alone, and described him as sitting “in a[n] upright position and what appeared to be kind of hiding behind the door jamb pushing himself into the driver’s seat.” Wilson demonstrated by “lift[ing] both arms in front of him indicating, apparently, holding the steering wheel, pushing himself backwards as though forcing his upper torso into the driver’s seat of the vehicle.” Wilson said Lopez did not look at him as he drove past, and he found this fact suspicious. He said he believed Lopez knew he was there and was trying to avoid being seen by pushing his body back behind the door frame. Wilson and Hollywood conferred briefly and decided they should follow Lopez to inquire further.
On cross-examination, Wilson conceded it was fair to describe Lopez as “sitting back in his seat” with “his hands in front of him on the wheel.” Wilson said Lopez appeared to be looking straight ahead and had his headlights illuminated. He conceded the door frame was only a few inches wide and did not completely hide Lopez. In addition, Wilson conceded Lopez had time to look over at the vehicle before passing through its lights.
As the agents caught up to him, Lopez changed from the left lane to the right lane. Lopez was driving about 50 miles per hour in a 70 mile-per-hour zone. Even at that speed, though, Lopez got stuck driving behind a tractor trailer. Wilson said they initially lagged behind him to observe for weaving, excessive lane changes, lane changes without a blinker, or evasive maneuvers, but saw none. The agents ran Lopez’s license plate and pulled up alongside him to gauge his reaction. Although they drove next to him for approximately a mile, Lopez never looked over or acknowledged them and he maintained a rigid posture. Wilson interpreted his reaction as an indication of nervousness. According to Wilson, Lopez did not speed up even after they drove off to investigate whether another passing vehicle was accompanying him. After running appellant’s license plate, Wilson learned the vehicle had earlier crossed the border between Mexico and the United States through the port of entry in San Luis, Arizona.
Based on these observations, Wilson decided he had a reasonable basis for stopping Lopez on suspicion he was either in the country illegally or smuggling illegal contraband (drugs or people). Wilson said he based his decision on Lopez attempting to hide behind the door frame, changing lanes as the agents approached in the fast lane, driving at 50 miles per hour, as well as that he had recently crossed the border and was a single driver in an older model, large-capacity vehicle on Interstate 10. Wilson testified the area of the Interstate 10 is a “highly used” corridor for smuggling drugs and undocumented aliens and that smuggling organizations often use single drivers to drive large older vehicles for carrying contraband.
Agents Wilson and Hollywood stopped Lopez near the last exit to Blythe, California. Lopez told them he was traveling to Riverside, California from Somerton, Arizona and was going to visit a friend in Perris, California. Wilson asked appellant if he could search his car, and Lopez consented. While searching appellant’s vehicle, Wilson noticed two rear seats had a backing that could be taken off easily and the seats felt harder to the touch than normal seats. He peeled back a portion of one of the seats and saw packages of narcotics. When agent Wilson asked appellant about the packages, appellant said, “I think it’s meth. They didn’t tell me.” The agents determined he was transporting heroin and methamphetamine.
C. The Court Proceedings
The Riverside County District Attorney charged Lopez with transporting heroin (Health & Saf. Code, § 11352, subd. (a); count 1) and methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count 2), more than 10 kilograms of each (Health & Saf. Code, § 11370.4, subds. (a)(3) & (b)(3)).
Before trial, defense counsel moved to suppress the drug evidence on the ground the agents did not have reasonable suspicion to justify the stop. Defense counsel argued the agents simply jumped to unwarranted conclusions and had no basis reasonably to infer Lopez was engaged in criminal activity. The prosecution argued the totality of the circumstances provided the agents with reasonable suspicion Lopez was engaged in criminal activity.
The trial court denied the motion to suppress. The court noted Lopez’s apparent nervousness, slow speed, and recent border crossing “are all to be considered under the totality of circumstances, and I believe warrant a denial of the motion.” The court remarked, “[W]hile I’m denying the motion to suppress, I do think that this is about as thin a case as can be justified by the circumstances as argued by the prosecution.”
The evidence admitted, a jury convicted Lopez of the two transportation of narcotics for sale offenses and found true Lopez had transported more than 10 kilograms of each. At sentencing on July 29, 2016, the trial court struck the weight enhancements in the interest of justice, and sentenced Lopez to the middle term of four years for count 1 and a concurrent three-year term for count 2, for a total of four years in state prison. The court awarded Lopez custody and conduct credits of 1,280 days.
Lopez filed a timely notice of appeal.
II
DISCUSSION
Lopez argues the trial court erred by denying his motion to suppress the evidence found during the search of his van because law enforcement did not have reasonable grounds to stop him in the first place. Since the stop was unlawful, he argues, the trial court should have suppressed the fruits of the search conducted after the stop. (People v. Loewen (1983) 35 Cal.3d 117, 122-123 (Loewen).) We agree.
The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9.) The primary purpose of the Fourth Amendment is to “impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement agents, in order to ‘safeguard the privacy and security of individuals against arbitrary invasions.’” (Delaware v. Prouse (1979) 440 U.S. 648, 653-654.) “A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure” if “[t]he search or seizure without a warrant was unreasonable.” (Pen. Code, § 1538.5, subd. (a)(1)(A).) A traffic stop is a seizure within the meaning of the Fourth Amendment. (Delaware v. Prouse, at p. 653.)
“It is settled that circumstances short of probable cause to make an arrest may justify a police officer stopping and briefly detaining a person for questioning or other limited investigation.” (In re Tony C. (1978) 21 Cal.3d 888, 892 (Tony C.), superseded by statute on another ground as stated in People v. Lloyd (1992) 4 Cal.App.4th 724, 733.) However, law enforcement officers are not free to detain citizens at will. “[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific or articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (Tony C., at p. 893.)
Officers may properly “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.’” (United States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu).) However, the officer’s suspicion must be objectively reasonable. “[T]he facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience . . . to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch, is unlawful, even though the officer may be acting in complete good faith.” (In re James D. (1987) 43 Cal.3d 903, 919-920, quoting Tony C., supra, 21 Cal.3d at p. 893.)
We exercise independent judgment to determine the legality of the search or seizure, but defer to the trial court’s factual findings supported by substantial evidence. (People v. Suff (2014) 58 Cal.4th 1013, 1053; People v. Ayala (2000) 23 Cal.4th 225, 255.) We resolve factual conflicts in the manner most favorable to the trial court’s disposition of the suppression motion. (People v. Martin (1973) 9 Cal.3d 687, 692.)
Here, it was not objectively reasonable to suspect Lopez was involved in criminal activity. Agent Wilson said Lopez caught their attention initially because he didn’t look at their vehicle as he drove past and appeared to be pushing himself back into his seat, behind the frame of the driver-side window. In the first place, these observations hardly make sense as a basis for suspicion that Lopez was transporting contraband. As Wilson conceded on cross-examination, it was dark outside, he saw Lopez only for the few seconds it took him to cross through the patrol vehicle’s lights, and Lopez would have been able to see the patrol vehicle before passing through the lights. As Wilson described the situation, it would have been far more natural for Lopez to look at the agents before he entered the lights and more suspicious (because more dangerous) if he was still looking once he had drawn even with their vehicle.
In addition, Lopez’s appearance would not suggest he was engaged in smuggling contraband, so there was no reason to infer he was trying to hide his face from the agents, unless because he feared improper racial profiling. Thus, his posture provided no basis for suspecting him of illegal activity even if he was trying to obscure his face behind the door frame. In any event, as Wilson demonstrated his posture, Lopez simply “lifted both arms in front of him . . . holding the steering wheel, [and] push[ed] himself backwards as though forcing his upper torso into the driver’s seat of the vehicle.” That posture is consistent with any number of innocent explanations, for example he was stretching at the moment he passed the agents. We conclude the fact Lopez was pushing himself back in his seat and looking ahead as he passed the agents gave them no basis for suspicion.
The agents also based their decision to stop Lopez on the fact he was driving below the speed limit, moved over when they caught up with him in the fast lane, and then pointedly did not acknowledge their presence when they drove alongside him for about a mile. These factors, even taken together, are too flimsy a basis for suspecting Lopez was engaged in criminal activity. Wilson testified Lopez maintained a slow speed throughout. He was driving approximately 50 miles per hour in the fast lane as the agents caught up with him. As they approached, he changed lanes, presumably—and appropriately—to allow them to pass. They initially lagged behind Lopez to watch for weaving, excessive lane changes, lane changes without a blinker, or evasive maneuvers that might suggest a basis for suspicion, but saw none of these indicators. When the agents drove alongside his vehicle for a mile to check him out, and even after they left him behind to pursue another vehicle, he maintained the same speed. Many people choose to drive slowly, and nothing Wilson said provided a basis for finding Lopez’s speed abnormal or suspicious. Indeed, Wilson said even at 50 miles per hour, Lopez “got stuck behind a tractor trailer.” Thus, this case is unlike Arvizu, where the defendant altered his speed significantly on seeing law enforcement approach. (Arvizu, supra, 534 U.S. at pp. 270-271.)
Lopez’s nervousness in the face of law enforcement scrutiny was also unremarkable. By the time the patrol vehicle had pulled alongside him, it was clear he was under observation. It was perfectly natural for Lopez to keep his hands on the steering wheel and his eyes on the road in that setting, as Wilson testified he did. (People v. Moore (1968) 69 Cal.2d 674, 683, overruled on another ground by People v. Thomas (1977) 19 Cal.3d 630, 637.) “If the right to be free from unjustified detentions is lost merely by seeking to avoid such encounters, then the right is meaningless; it would exist only to the extent it was not exercised.” (People v. Bower (1979) 24 Cal.3d 638, 649.)
The only other bases for suspicion Wilson offered are insufficient. He said he judged the facts we have just described with the background knowledge that the portion of the Interstate 10 they patrolled was a “highly used” corridor for smuggling drugs and undocumented aliens, he knew drug traffickers use older large-capacity vehicles, and after running Lopez’s license plates learned the vehicle had recently crossed the United States-Mexico border. These factors simply sweep up too many people to justify a stop. (United States v. Foreman (4th Cir. 2004) 369 F.3d 776, 781 [factors relied on, if subject to innocent interpretation, “must serve to eliminate a substantial portion of innocent travelers”].) The Interstate 10 is heavily traveled in general. Many people drive vehicles that are both large and old. And tens of thousands of vehicles cross into the United States from Mexico each day. “An ‘officer’s assertion that the location lay in a ‘high crime’ area does not elevate . . . facts into a reasonable suspicion of criminality . . . The spectrum of legitimate human behavior occurs every day in so-called high crime areas.’” (Loewen, supra, 35 Cal.3d at p. 124.) Even taking these factors all together and accepting that Lopez’s slow speed, lane change, and rigid posture indicated signs of nervousness under scrutiny, we conclude the agents essentially operated on a hunch, not reasonable suspicion. (Id. at pp. 128-129 [“[S]ince the pickup was not driven erratically, and neither occupant’s gestures were otherwise objectively suspicious, the fact that the pickup continued on, even at an accelerated pace, was not reasonably indicative of criminal behavior”].)
Our Supreme Court’s opinion in People v. Moore is instructive. There, a police officer observed a man making a telephone call from a public phone booth in an area of high narcotics traffic. (People v. Moore, supra, 69 Cal.2d at p. 678.) The man seemed to see the officer and then “moved from a comfortable position in the telephone booth, and turned his back on the police car. Defendant appeared nervous. The officer thought that defendant ‘was trying to avoid’ him.” Considering his nervous conduct together with “‘the area and the surrounding circumstances,’” the officer detained the man. (Ibid.) Our Supreme Court held the detention was invalid. The court held “[t]o hold that police officers should in the proper discharge of their duties detain and question all persons in that location or all those who act nervous at the approach of officers would for practical purposes involve an abrogation of the rule requiring substantial circumstances to justify the detention and questioning of persons on the street.” (Id. at p. 683.) We conclude the same logic applies here.
We recognize the trial court credited agent Wilson’s testimony and we do not mean to suggest he did not testify in good faith. However, in this case, Agent Wilson’s “good faith suspicion” Lopez was “engage[d] in criminal activity was not reasonable. None of the . . . factors [he] testified to . . . ‘mysteriously bec[a]me imbued with an aura of guilt merely by viewing them in their ‘totality.’” (Loewen, supra, 35 Cal.3d at p. 129.) Any amount times zero still equals zero. (Ibid.)
The authorities the People rely on do not require a different result. In Arvizu, the United States Supreme Court approved a border patrol stop and search under far more suspicious circumstances. There, the defendant was driving “along a little-traveled route used by smugglers to avoid [a border patrol] checkpoint,” the agent knew the driver was passing through when officers would be leaving their backroads patrols to change shifts, and it was unlikely the driver and his family were on an innocent picnic outing because they had already turned away from known recreational areas in one direction and reaching those in another direction would have required a 40-to-50-mile trip on unpaved and primitive roads. (Arvizu, supra, 534 U.S. at pp. 268, 270, 277.) The agent also noticed the children in the back of the vehicle had their knees up “unusually high, as if their feet were propped up on some cargo on the floor,” and the children “put their hands up at the same time and began to wave at [the agent] in an abnormal pattern . . . as if the children were being instructed,” a gesture which continued for a period of four or five minutes. (Id. at p. 270.) Here, the agents stopped Lopez while he drove on a major highway displaying nothing but ordinary nervousness under law enforcement scrutiny.
In People v. Letner and Tobin (2010) 50 Cal.4th 99, 147, our Supreme Court narrowly approved a vehicle stop under more suspicious circumstances. In that case, a police officer observed a Ford Fairmont driving at midnight in the otherwise deserted streets of downtown Visalia. The officer explained his “attention was drawn to the Fairmont because its exterior was beaded with water. Although it had rained heavily earlier that night, the rain stopped at approximately 9:30 p.m., and other vehicles traveling on the roads were not beaded with water, whereas the exteriors of cars parked nearby in a car lot and on the street were still wet.” The officer was on alert because he was aware car dealerships in the neighborhood had filed numerous recent reports of vehicle thefts, including several reports from a Ford dealership with several car lots and a body repair shop. The officer inferred from the fact the car was beaded with water that it had been driven only a short distance from where it had been parked a few hours earlier, and may have been removed from a car dealership lot. (Id. at p. 142.) The officer then followed the Fairmont openly, and the driver proceeded to drive normally until he got onto the highway. There, the driver began driving “at an abnormally slow speed for no apparent reason,” and the officer became concerned the driver was drunk. (Id. at p. 143.)
The agents in this case did not have such objective bases for suspicion. Nothing about Lopez’s car suggested he might be involved in criminal activity, and though he drove slowly, his driving was not abnormal. Indeed, once Lopez changed lanes, he was caught behind a tractor trailer traveling at about the same speed. We therefore conclude the agents acted without a reasonable basis for suspicion when they stopped Lopez. The trial court therefore erred in denying Lopez’s motion to dismiss.
III
DISPOSITION
We reverse the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:


McKINSTER
Acting P. J.


MILLER
J.