[00:00:20] Speaker 02:
Edie Cunningham on behalf of Ms.

[00:00:22] Speaker 02:
Martinez.

[00:00:23] Speaker 02:
Agent Sally stopped the car merely because it was registered in Eloy and made a quick turnaround in Miniatures Dam, which was a known smuggling area.

[00:00:32] Speaker 02:
There simply weren't enough factors here to in combination amount to reasonable suspicion.

[00:00:39] Speaker 04:
Is that the only factor though that we look at?

[00:00:41] Speaker 04:
Can't we look at some other aspects of what was going on?

[00:00:45] Speaker 02:
Well, Your Honor, that was really the, those were the only suspicious factors.

[00:00:49] Speaker 02:
It certainly wasn't a known smuggling area.

[00:00:51] Speaker 01:
This wasn't like, you know, going down, you know, Washington Boulevard and then turning around.

[00:00:59] Speaker 01:
This was a very unusual area, a remote area that not a lot of outsiders would go to.

[00:01:06] Speaker 01:
And isn't that something that we can take into account in, together with all the other circumstances?

[00:01:14] Speaker 02:
Your Honor, that's one factor to be considered, but we have to remember that this is an area where hundreds of Tohono O'odham members live, and a substantial majority, 20,000 out of 30,000 TO members, do not live on the reservation.

[00:01:30] Speaker 02:
It is very common to have family members from other parts of the state, including Eloy, where I believe Ms.

[00:01:39] Speaker 02:
Martinez was born, but TO members live there,

[00:01:42] Speaker 02:
visit these remote villages.

[00:01:43] Speaker 02:
These are close-knit families.

[00:01:45] Speaker 02:
And just as families, for example, my family, we would drop off grandkids at a grandmother's house in Phoenix and turn around and come right back, those TO members have a right to drive down to their relative's house for whatever reason, to take an elderly... What is your response to the assertion that you're taking a divide-and-conquer approach here, which is not permitted in this circuit?

[00:02:10] Speaker 02:
Well, Your Honor, and I understand that there's simply not enough to divide and conquer here.

[00:02:15] Speaker 02:
And in re-reading our VSU yesterday, it really does comport with what the majority says in Regozo Garcia, which is that oftentimes in isolation, a factor will have a quite plausible innocent explanation.

[00:02:34] Speaker 02:
But when you put it all together, there's just not a plausible innocent explanation.

[00:02:39] Speaker 02:
That's what happened in Terry.

[00:02:42] Speaker 01:
Our visa specifically says that for reasonable suspicion, you don't have to rule out the possibility of innocent conduct.

[00:02:49] Speaker 01:
The fact that there is an innocent explanation, could have been dropping off a grandchild, doesn't mean the standard's not met.

[00:02:57] Speaker 02:
Well, Your Honor, I think what it means, and I definitely know that what the majority in Rigoza Garcia meant, which is a Ninth Circuit case, was that when you look at everything together, and there's still a perfectly plausible explanation for it, then that's simply not enough.

[00:03:18] Speaker 02:
And I have read a lot of cases.

[00:03:20] Speaker 02:
I'm sure the court has as well.

[00:03:23] Speaker 02:
I have never seen a case in which

[00:03:26] Speaker 02:
reasonable suspicion, the basis for it was so thin.

[00:03:31] Speaker 03:
Enrigo?

[00:03:31] Speaker 03:
What do we do with the officer's statement that because the community was so small and he had been servicing that community for so long, that he was familiar with the residents, the vehicles that were driven there, and so he was able to determine when that vehicle was there that generally didn't come there.

[00:03:53] Speaker 03:
What do we do with that statement?

[00:03:55] Speaker 03:
Well, Your Honor,

[00:03:56] Speaker 02:
I would say that he's not going to be familiar with the vehicles of the friends and family members who live off the reservation.

[00:04:09] Speaker 02:
And given the numbers, given the fact that a substantial majority of TO members do live in places like Eloy and Tucson and Phoenix, that he's- He said exactly that.

[00:04:19] Speaker 03:
He is familiar with the vehicle traffic that comes through there.

[00:04:25] Speaker 02:
Well, what if a family member has gotten a new car or has borrowed a car?

[00:04:29] Speaker 02:
I mean, you can't, he simply cannot be familiar with any vehicle that has a legitimate reason to visit.

[00:04:37] Speaker 02:
I mean, people have lots of family and friends.

[00:04:41] Speaker 02:
So he wouldn't be familiar with family members' vehicles who are coming to visit, coming to drop off a child, bringing something there.

[00:04:49] Speaker 03:
Counsel, that in conjunction with the fact that he stated that this was a

[00:04:55] Speaker 03:
a place where drug smuggling and people smuggling was known to occur, that coupled with the fact that the car was unfamiliar and the way it turned around, why wouldn't that be enough?

[00:05:08] Speaker 03:
Reasonable suspicion is not a high level required.

[00:05:12] Speaker 03:
So why wouldn't that be enough, the combination?

[00:05:15] Speaker 02:
Well, I understand, Your Honor, but it's got to mean something, as this Court said in Rigozo Garcia.

[00:05:21] Speaker 02:
And if this stands, it means nothing.

[00:05:22] Speaker 02:
And as I said, what it does mean is that T.O.

[00:05:27] Speaker 02:
members who have friends and family among the hundreds of people who live down in that area are not going to be able to go down there without... A quick turnaround.

[00:05:38] Speaker 04:
And go down there for a longer time.

[00:05:39] Speaker 02:
Well, yeah, they'll have to know that they need to stay for at least two hours or however long it would be.

[00:05:45] Speaker 02:
And so that really burdens their privacy and association rights in an inappropriate way.

[00:05:50] Speaker 02:
And as I said, I just am aware of no case where there's been such thin reasonable suspicion.

[00:05:57] Speaker 02:
How close is this town manager's dam to the border?

[00:06:01] Speaker 02:
Only a couple of miles, Your Honor.

[00:06:02] Speaker 02:
Yeah.

[00:06:03] Speaker 02:
I thought it was a half mile.

[00:06:05] Speaker 02:
Well, maybe, maybe a half mile.

[00:06:07] Speaker 02:
It's very close to the border.

[00:06:08] Speaker 02:
I'm not going to disagree with you on that.

[00:06:10] Speaker 02:
And I'm not going to disagree that there is smuggling that occurs there.

[00:06:15] Speaker 02:
But the court should be mindful that these are our tribal citizens who should not be burdened in this way.

[00:06:25] Speaker 02:
And law enforcement, an important point to make is that law enforcement isn't hamstrung here.

[00:06:31] Speaker 02:
All one of those officers needed to do

[00:06:34] Speaker 02:
was follow that car.

[00:06:36] Speaker 03:
And two things would have happened.

[00:06:38] Speaker 03:
They could have done that, but did the reasonable suspicion standard require them to do that?

[00:06:45] Speaker 02:
I think it did, Your Honor, because it would have developed that suspicion easily.

[00:06:51] Speaker 02:
It would have thwarted the crime, or they would have seen something suspicious.

[00:06:54] Speaker 02:
And in every other case, in Arviso, the officer followed the car, in Arregosa Garcia, in Valdes Vega, the officers followed the car to see what was up.

[00:07:05] Speaker 02:
And in the Carmen case, which is unpublished and non-precedential, but I do believe it occurred in the very same area,

[00:07:12] Speaker 02:
That's what the officer did.

[00:07:13] Speaker 02:
They followed the car.

[00:07:14] Speaker 02:
The car started, you know, appearing to try to evade, and so they stopped it.

[00:07:18] Speaker 02:
They had reasonable suspicion.

[00:07:20] Speaker 02:
Also in the Carmen case, that was late at night, I think at 10.30, not at a time when people would be visiting, and it was a rental car.

[00:07:28] Speaker 02:
So there were other suspicious factors as well.

[00:07:31] Speaker 02:
But this is not, you know, law enforcement just didn't do enough.

[00:07:34] Speaker 02:
And it wasn't as though they had a lot of other things to do.

[00:07:38] Speaker 02:
They had two officers on that road.

[00:07:41] Speaker 02:
It's really puzzling why one of them didn't just follow that car and see what was up.

[00:07:48] Speaker 02:
And I'll reserve the rest of my time.

[00:07:50] Speaker 02:
Thank you.

[00:07:57] Speaker 00:
Good morning, Your Honors.

[00:07:58] Speaker 00:
May it please the Court?

[00:07:59] Speaker 00:
My name is Ashley Underlee and I represent the United States.

[00:08:02] Speaker 00:
This Court should affirm the District Court's order finding that reasonable suspicion existed for Agent Sully to stop the defendant's vehicle.

[00:08:11] Speaker 00:
The stock was based on the totality of the circumstances, which among other factors that I'll discuss more in detail shortly, involved a non-local vehicle traveling down a rural highway to a remote village for all intensive purposes that was on the border a half a mile away that made a quick turnaround and returned up that rural road.

[00:08:33] Speaker 00:
And, Your Honors, I want to discuss the divide and conquer analysis that the defense continues to implore the court to do.

[00:08:40] Speaker 00:
Although she says that is not the correct standard, and it is not, by saying that each one of these factors could be attributed to an innocent explanation or by saying that this factor doesn't have any weight or this factor doesn't have any weight, she is asking you to conduct a divide and conquer analysis.

[00:08:58] Speaker 00:
And that is contrary to Supreme Court precedent in our VSU and the Ninth Circuit precedent on the reasonable suspicion cases post our VSU.

[00:09:07] Speaker 00:
This court has to look at the whole picture in light of a very experienced officer's training and experience.

[00:09:14] Speaker 00:
One of the most substantial factors here is the area in which this vehicle was traveling towards.

[00:09:21] Speaker 00:
Manager's Dam is a half a mile from the border.

[00:09:24] Speaker 00:
It's essentially on the border.

[00:09:26] Speaker 00:
It is known by border patrol agents to be a high traffic area for drug and alien smuggling.

[00:09:33] Speaker 00:
It's located on a portion of the border where there is no border wall.

[00:09:37] Speaker 00:
only vehicle bollards, and Agent Salee had personally apprehended drugs or illegal aliens in almost every building in Menagers Dam.

[00:09:47] Speaker 01:
Her point is basically every vehicle that isn't local that drives into this town and turns around essentially can be stopped.

[00:09:59] Speaker 00:
That's not correct, Your Honor.

[00:10:01] Speaker 00:
All of the facts in this case, you have to look at the whole picture.

[00:10:04] Speaker 00:
And there's more there.

[00:10:06] Speaker 00:
It was a non-local vehicle, but Agent Salee had personally come to know most of the local traffic.

[00:10:13] Speaker 00:
Between all three villages on FR1, which is a 30-mile stretch of poor roadway, only one lane in each direction, there's only 400 to 500 people between all three of those vehicles.

[00:10:25] Speaker 00:
He's come to recognize not only the vehicles that traveled that road, but also the names of the residents.

[00:10:30] Speaker 01:
How many years did he work in that area?

[00:10:33] Speaker 00:
He worked in the area 17 years, but the past four years exclusively along FR1.

[00:10:38] Speaker 00:
So he knows the local residents and he knows the local vehicles.

[00:10:42] Speaker 00:
Now, while the defendant was a member of the Tehota Odom Nation, she was not driving a vehicle registered to her.

[00:10:47] Speaker 00:
And the vehicle was registered in Eloy, 100 miles away, which Officer Silly recognized Eloy to be a transshipment center for alien and drug smuggling.

[00:10:58] Speaker 00:
Additionally, I would point the court to ER 99 when Agent Salee is discussing his body cam video and that during the entire stop from pulling the vehicle over through processing all of the individuals found in the vehicle to transporting them away, that entire time only one vehicle in either direction passed on the roadway.

[00:11:20] Speaker 00:
So it's not a heavily traveled roadway.

[00:11:22] Speaker 00:
and it is reasonable that somebody who has worked the area for that long would recognize the local traffic, even visitors.

[00:11:31] Speaker 00:
The vehicle was also traveling at sunset, which the district court correctly noted would obscure

[00:11:36] Speaker 00:
visitors from seeing local tourist sites, if any existed.

[00:11:42] Speaker 00:
On that note, Menagers Dam itself has no areas for the public, and that has no restaurants, no gas stations, no grocery stores, no shopping or retail stores, nothing.

[00:11:55] Speaker 00:
In addition to traveling at sunset, or another factor about it traveling at sunset, as Agent Olivas testified, was that is a time when the surveillance video on Menagers Dam

[00:12:05] Speaker 00:
turns and faces away from the village because of the glare on the camera from sunset.

[00:12:13] Speaker 00:
And then the factor that, well, not most heavily, but is heavily considered by Agents Lee is that quick turnaround.

[00:12:21] Speaker 00:
This vehicle from out of the area is coming all the way down to this area known for human and drug smuggling and staying for only a matter of minutes.

[00:12:30] Speaker 00:
Agent Salee knows that the buildings in this area are used for human and drug smuggling.

[00:12:36] Speaker 00:
He also knows that there's load up spots before the village.

[00:12:42] Speaker 00:
This vehicle was last observed by Agent Salee at, I'm sorry, Agent Olivas at around mile marker seven, and that's seven miles before Menagers Dam.

[00:12:51] Speaker 00:
Agent Salee testified that there are several load up spots between that mile post and Menagers Dam.

[00:12:58] Speaker 00:
where individuals will hide in the desert and then load up into a vehicle.

[00:13:05] Speaker 00:
The turnaround in this case was only a matter of minutes, really not enough time to do anything substantial.

[00:13:11] Speaker 00:
And again, all these factors are viewed through the light of a highly experienced officer.

[00:13:18] Speaker 00:
Again, he had worked in the area for 17 years, exclusively for the last four years, interdicted drugs and undocumented non-citizens in almost every structure there.

[00:13:27] Speaker 00:
He knew the local traffic, he knew the local residents, he knew the local load-up spots.

[00:13:33] Speaker 00:
Agent Sully reasonably believed that he was witnessing a smuggling attempt, and he was able to pull the vehicle over and further investigate, and his suspicions were confirmed.

[00:13:43] Speaker 00:
I would like to go to counsel's argument about Rigoza Garcia and the innocent factors.

[00:13:53] Speaker 00:
Rigoza Garcia doesn't stand for what the defense is saying it stands for.

[00:13:58] Speaker 00:
Rigoza Garcia specifically cites Valdez Vega and explains that even though individual acts may be innocent in themselves, taken together they may warrant further investigation.

[00:14:10] Speaker 00:
It does not say that there has to be any

[00:14:12] Speaker 00:
non-innocent conduct.

[00:14:14] Speaker 00:
It does not say or none of the case law on this issue says that an officer has to actually observe people or drugs load up into a vehicle.

[00:14:24] Speaker 00:
In fact, that would be much higher than what reasonable suspicion requires.

[00:14:27] Speaker 00:
They're almost getting to probable cause at that point if you're actually seeing the drugs or people load up into the vehicle.

[00:14:35] Speaker 00:
Regoza Garcia holds that there's reasonable suspicion in that case, and the factors there are all innocent explanation factors as well.

[00:14:45] Speaker 00:
But taken together, it showed the agents in that case, or the officers in that case, that this was probably, that they had reasonable suspicion to believe that it was a drug smuggling load.

[00:14:57] Speaker 00:
There were no non-innocent factors there.

[00:15:01] Speaker 00:
It was the totality of the innocent factors in the light of the agent's training and experience that showed reasonable suspicion existed.

[00:15:13] Speaker 00:
Not seeing a vehicle pick up people or drugs from the side of the roadway, that's analogous to the Tiong case cited in my brief, that the agent saw a vehicle go down Smuggler's Road as it was

[00:15:26] Speaker 00:
notoriously called.

[00:15:27] Speaker 00:
They didn't follow the vehicle down Smuggler's Road.

[00:15:30] Speaker 00:
They saw it turn down Smuggler's Road, make a quick turnaround, and come back out.

[00:15:35] Speaker 00:
Along with all the circumstances of that area and the behavior of that driver, this court found that reasonable suspicion existed, even though nobody ever saw anything load up into that vehicle.

[00:15:54] Speaker 00:
And Your Honors, I would argue that this case even has more than what's set forth in our VSU.

[00:15:59] Speaker 00:
In our VSU, we're talking about Douglas, which had 13,000 people.

[00:16:03] Speaker 00:
And the agent was still able to describe the facts and circumstances in that case that led him to believe that smuggling was afoot.

[00:16:11] Speaker 00:
In this case, we have 400 to 500 vehicles, or sorry, 400 to 500 residents in a very rural area on the border, a half a mile away from the border.

[00:16:24] Speaker 00:
With the quick turnaround, with it being registered over 100 miles away, the agent not recognizing the vehicle or the person, all of these, in light of the agent's training and experience, led him to believe that this was a smuggling attempt.

[00:16:44] Speaker 00:
If the court has no additional questions for me, I would conclude by, again, saying that the court must look at the whole picture here, the whole picture in light of the agent's training and experience, and give due weight, as our VSU sets forth, to the factual inferences by resident judges and local law enforcement, and find that the district court correctly held that reasonable suspicion existed here.

[00:17:10] Speaker 00:
Thank you, Your Honors.

[00:17:14] Speaker 03:
Rebuttal.

[00:17:21] Speaker 02:
Your Honor, with regard to Rigoza Garcia, this is a quote from the concurring opinion, which included two judges, so it's binding.

[00:17:34] Speaker 02:
A stop may not be based on innocent conduct in and of itself.

[00:17:39] Speaker 02:
You have to look at the whole picture, and if the whole picture

[00:17:43] Speaker 02:
doesn't seem consistent with innocent conduct, then there's reasonable suspicion.

[00:17:48] Speaker 02:
But if the whole picture still seems consistent with innocent conduct, then that's not enough.

[00:17:53] Speaker 02:
And I think that's the principle that all of these cases stand for.

[00:17:57] Speaker 02:
The non-innocent conduct, which conceivably could have been innocent in Regoza Garcia, was the burning of the cars, the crossing history, which could be innocent, but there are very few legitimate reasons for doing that.

[00:18:10] Speaker 02:
and the fact that there was a different driver who had come across the border that morning than the one who was driving the car.

[00:18:17] Speaker 02:
Again, could be innocent, but it would be really strange.

[00:18:21] Speaker 02:
In Terry, that's another good example.

[00:18:24] Speaker 02:
What happened in Terry could have been innocent, but it just wasn't plausibly innocent under the circumstances.

[00:18:31] Speaker 02:
RVSU, I would suggest, is very different.

[00:18:35] Speaker 02:
van was driving out on dirt forest service roads where there were no populations.

[00:18:40] Speaker 02:
They weren't going to visit anyone.

[00:18:42] Speaker 02:
And it conspicuously avoided a checkpoint.

[00:18:45] Speaker 02:
There were the kids' knees that were up in the air and the mechanical waving and all kinds of things that were going on there.

[00:18:52] Speaker 02:
And if I didn't mention it before, Agent Sally was not just suspicious of cars from Eloy.

[00:18:58] Speaker 02:
He was suspicious of cars from anywhere else.

[00:19:01] Speaker 02:
Phoenix, Yuma, Tucson, Casagrande.

[00:19:05] Speaker 02:
And as I mentioned before, these are places where many TO members live.

[00:19:10] Speaker 02:
Those people are not going to have cars that he recognizes.

[00:19:14] Speaker 02:
They're not going to have names that he recognizes necessarily.

[00:19:17] Speaker 02:
I mean, people get married.

[00:19:19] Speaker 02:
He's not going to know the name of every family member or friend who is going down to visit.

[00:19:24] Speaker 02:
The hundreds of people who live in those villages.

[00:19:32] Speaker 02:
Sally, neither Sally nor all of us, and it was Sally who made the stop, cited the issue with the camera at Sunside as a reason for the stop.

[00:19:42] Speaker 02:
It was, that wasn't even explained until trial and it wasn't explained by Sally, it was explained by all of us as a reason why the cameras maybe didn't pick it up.

[00:19:52] Speaker 02:
But I would note that they also had radar down there which could pick up movements.

[00:19:57] Speaker 02:
That wasn't activated either.

[00:20:00] Speaker 02:
And in Tiang, there was much more at play, which I've explained in the briefing.

[00:20:04] Speaker 03:
All right.

[00:20:05] Speaker 03:
Thank you, counsel.

[00:20:06] Speaker 02:
Thank you.

[00:20:06] Speaker 03:
Thank you to both counsel.

[00:20:08] Speaker 03:
The case just argued is admitted for decision by the court.