Metropolitan News-Enterprise


Thursday, April 17, 2008


Page 3


Border Patrol Agent Lacked Reasonable Suspicion for Stop—C.A.


By STEVEN M. ELLIS, Staff Writer


A border patrol officer who randomly selected and stopped the closer of two U-Haul trucks he observed after receiving a tip about suspicious activity involving such a truck lacked a reasonable suspicion of illegal conduct to justify his actions, the Fourth District Court of Appeal ruled yesterday.

Holding, in an unpublished opinion, that Imperial Superior Court Judge Juan Ulloa should have granted Ruben Lopez Reyes’ motion to suppress evidence of 235 large bundles of marijuana U.S. Border Patrol agent James Bondanza found when he stopped and searched the truck Reyes was driving, Div. One reversed Reyes’ conviction for transporting marijuana and remanded the matter to the trial court to allow him to withdraw his plea of no contest.

Bondanza was in a marked vehicle on a road just south of the Interstate 8 freeway in March 2007 when an unidentified driver approached him and said that he had seen a U-Haul truck stop on the side of the freeway, meeting two individuals who emerged from behind a bush. The witness said he could not see whether the individuals had entered the truck, but told Bondanza that it had then continued to proceed east on the freeway.

Despite having never before received information from the witness and having no way to verify the tip, Bondanza believed the witness and drove west on the freeway, looking for the truck. After driving about two to three miles, he saw two U-Hauls proceeding east on the freeway, approximately one mile apart, so he turned around and followed the closest one.

Observing that Reyes “appeared nervous,” and slowed from 80 to 45 mph, Bondanza initiated a traffic stop. After another officer arrived with a canine that sniffed the truck and “alerted” that drugs were present, Bondanza searched the rear and found the bundles of marijuana wrapped in cellophane.

Following Ulloa’s denial of Reyes’ motion to suppress the evidence, Reyes entered a negotiated no contest plea and the court sentenced him to three years in prison.

Reyes then appealed, contending that his detention had been illegal for lack of reasonable suspicion, and the Court of Appeal, in an opinion by Justice Patricia D. Benke, agreed.

Quoting U.S. Supreme Court precedent, she wrote that “Border Patrol agents have no part in enforcing laws that regulate highway use,” and that agents “may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.“

Pointing out that factors to take into account include the area’s characteristics of the area, the proximity to the border, information about recent illegal border crossings in the area, the usual traffic patterns on the particular road, the officer’s previous experience with alien traffic, the driver’s behavior, and the aspects of the vehicle itself, Benke wrote that “there was no evidence concerning any of these factors except Bondanza’s testimony that Reyes’s apparent nervousness--which Bondanza observed for no more than three minutes--and a dramatic reduction in speed were consistent with alien and narcotics smuggling.”

Benke then turned to the remaining basis of Bondanza’s suspicion—the tip from the unidentified driver. Although she wrote that exigent circumstances may justify a stop despite the inability to corroborate the informant’s reliability, she concluded that no exigent circumstances existed.

“Furthermore,” she added, “the anonymous tip neither identified a determinate person nor described illegal activity.”

Benke continued:

“Bondanza stopped the U-Haul Reyes was driving simply because it was closer than the other U-Haul. There was no evidence as to when the unidentified driver saw the U-Haul, how long after the driver’s report Bondanza saw the U-Haul, whether there were any intervening freeway entrances and exits, or any other factor that might provide a reasonable basis for this choice….

“The trial court erred by denying the suppression motion.”

Justices Richard D. Huffman and Cynthia Aaron joined Benke in her opinion.

The case is People v. Reyes, D051597.


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