Metropolitan News-Enterprise


Friday, February 7, 2020


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Court of Appeal:

Officer’s Training in Behavioral Analysis Doesn’t Justify Search Based on Hunch


By a MetNews Staff Writer


A U.S. Customs and Border Protection agent’s instinct, though based on training in “behavior analysis” and experience, was not enough to justify stopping a vehicle and searching it, Div. Two of the Fourth District Court of Appeal has held, declaring that the fruits of that search should have been excluded as evidence.

The opinion, filed Wednesday, reverses the conviction by a jury of Blanca Luna Mendoza for transporting, for sale, more than four kilograms of cocaine. Denial of her suppression motion by Riverside Superior Court Judge John M. Davis followed testimony by Border Patrol Agent Arturo Acosta.

Acosta, an agent for 10 years, said he was trained in drawing inferences from conduct, with “something simple, something simple as a lane change, the behavior or the person in the vehicle, the vehicle slowing down” providing a basis for a  reasonable suspicion.

He said that his suspicion was raised, while on patrol in San Diego County in an unmarked vehicle, because the highway—Interstate 15—is frequently used by drug smugglers. At its southernmost point, it connects to Interstate 5, a short distance north of the Mexican border.

In running the license plate, Acosta testified, he learned that the blue Jeep being driven northward by Mendoza had crossed the border the previous week and was registered to a woman. He said he pulled up beside her vehicle and stared at her and, after eye contact was made, she dropped back, slowing her speed and maintained a slower pace even as he decelerated, and did not look at him when she passed him a few minutes later.

Totality of Circumstances

Summing up the circumstances causing him to stop the vehicle—which by then had reached Riverside County—Acosta explained:

“So, the totality is based off of the nexus to the border—recent nexus to the border, female crossing it, female driver of the vehicle, driving behavior, lane changes behind me, speed, not passing me for—I believe it was approximately three miles even though I slowed down considerably because—in comparison to the general public that was on the highway that day, her rigid posture once I approached the vehicle again. All of that and I thought I had a reasonable suspicion to pull over the vehicle.”

Davis remarked that “this is paper thin for reasonable suspicion,” but denied the suppression motion, explaining that Acosta is an “experienced officer” and the circumstances “weren’t something he made up.”

Slough’s Opinion

The factors cited by Davis for denying the motion were inadequate, Justice Marsha G. Slough said in her opinion reversing Mendoza’s ensuing conviction.

“The Fourth Amendment requires more,” she wrote, declaring:

“We conclude the agent based his decision to stop Mendoza on insufficient evidence she was engaged in criminal activity. At bottom, the agent acted on a hunch, which is improper, even though—in this case—it proved correct.”

The fact that Mendoza was traveling on I-15 was not, in itself, a cause for suspicion, Slough said, noting:

“The portion of the I 15 in San Diego County is among the top 20 most traveled highway stretches in the United States, averaging 295,000 vehicles a day in 2008.”

The propinquity to the border also was insufficient, standing alone, she remarked, reciting:

“The U.S.-Mexico border is the most crossed border in the world.”

Inadequate Basis

She continued:

“Thus, though Mendoza’s vehicle’s recent border crossing and location on the I-15 provided some reason to look into her activities further, they provided almost no basis for thinking she was involved in criminal activity. Those factors alone would draw into suspicion tens of thousands of people every day, perhaps more.”

Acosta needed something more than that, the jurist said, concluding that the circumstances he proceeded to cite were inadequate to justify the stop. She noted that Acosta was in an unmarked car when he pulled beside her vehicle, lowered his window, and stared at her.

“[W]hen he pulled alongside her,” Slough observed, “ it was his conduct that looked suspicious, not hers.”

The jurist continued:

“She reacted by taking fairly innocuous action to avoid him. Mendoza didn’t drive erratically, didn’t change lanes repeatedly, and didn’t use other evasive maneuvers. She just slowed down and pulled behind him.”

Slough said “the most natural interpretation of Mendoza’s conduct” in staying behind Acosta “is that she sought to avoid him because she found his conduct threatening and potentially aggressive,” adding:

“Agent Acosta inferred she was trying to avoid being stopped by law enforcement. But given the absence of evidence that she knew it was law enforcement who was inspecting her, the natural inference is she was trying to maintain a safe position with respect to a civilian driver who was behaving in a threatening manner toward a woman driving alone.”

The case is People v. Mendoza, 2020 S.O.S. 506.


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