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United States v. Rojo-Aguilar

filed*fn*: April 17, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSE MARIA ROJO-AGUILAR, DEFENDANT-APPELLANT.



On Appeal from the United States District Court for the District of Arizona. D.C. No. CR-91-00041-RMB. Richard M. Bilby, Chief Judge, Presiding.

Before: Boochever, Beezer and Trott, Circuit Judges

MEMORANDUM

This case addresses whether two border patrol agents had reasonable suspicion to stop a pickup truck, a subsequent search of which yielded 136 pounds of marijuana. Jose M. Rojo-Aguilar appeals his conviction upon a conditional guilty plea. We have jurisdiction and we affirm.

I

From Arivaca, Arizona, Ruby Road leads to Pena Blanca Lake. The dirt road runs through an area that is arid, desolate and close to the Mexican border. The area had recently experienced a number of narcotics transshipments.

At approximately 7:00 p.m. on December 26, 1990, Agent Sparks observed a clean 1979 silver Dodge pickup driving toward Arivaca on Ruby Road. The cold temperature made it unlikely that the truck had been used for recreational purposes. Agent Sparks did not recognize the truck as that of a local rancher. A Hispanic male appeared to be driving the truck, which had a large tool box attached to its bed. Agent Sparks and his partner Agent Santana followed the truck.

Agent Sparks testified that the truck proceeded at about forty to forty-five miles per hour. He testified that the speed limit on Ruby Road is about twenty-five miles per hour. Agent Santana corroborated that the truck proceeded at forty-five miles per hour. After clearing a blackout zone of some hills and curves, Agent Sparks received a radio transmission informing him that the truck was registered to Harvey W. Hendricks of Tucson.

Upon arriving in Arivaca, the truck turned and headed toward Tucson on Arivaca Road, a paved road, which Agent Sparks testified has a fifty-five mile per hour speed limit except in certain curves. Agent Santana testified that she recalled the speed limit being thirty-five to forty miles per hour. Both agents agreed that the truck proceeded at twenty to twenty-five miles per hour on Arivaca Road. Agent Sparks stopped the truck about three miles outside of Arivaca on Arivaca Road. The stop led to the discovery of 136 pounds of marijuana in the tool box and the arrest of Rojo-Aguilar.

Rojo-Aguilar testified that he drove at twenty to twenty-five miles per hour on Ruby Road and forty to forty-five miles per hour on Arivaca Road.

Upon Rojo-Aguilar's motion, the district court held a hearing on March 18, 1991, to determine whether the marijuana should be suppressed because the agents lacked reasonable suspicion to stop him. The district court believed the agents and not Rojo-Aguilar with respect to the facts surrounding vehicle speed. It found that Rojo-Aguilar drove forty-five in a twenty-five zone and twenty-five in a fifty-five zone. The district court further concluded that a Christmas traveler from Tucson would not take the route driven by Rojo-Aguilar.

The district court denied Rojo-Aguilar's motion to suppress. Pursuant to Fed. R. Crim. P. 11(a)(2), on April 9, 1991, Rojo-Aguilar entered a conditional guilty plea to a charge of possession of between 50 and 100 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(c). On June 24, 1991, the district court sentenced Rojo-Aguilar to 21 months in prison, followed by 60 months of supervised release. He is presently serving his sentence.

Rojo-Aguilar points out that the agents had stopped and searched another truck earlier on the evening of December 26, 1990.*fn1 The district court ruled that stop clearly improper. In commenting on that stop during Rojo-Aguilar's hearing, the district court noted, "I think they made a decision that night that they were going to stop every truck coming down the road."

II

We review de novo whether reasonable suspicion existed for an investigatory stop. United States v. Franco-Munoz, 952 F.2d 1055, 1056 (9th Cir. 1991). Even though we review this mixed question of law and fact de novo, we review the establishment of underlying basic facts for clear error. United States v. McConney, 728 F.2d 1195, 1200-02 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984). Such review entails ...


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