Individual facts consistent with innocent travel may collectively provide reasonable suspicion for investigatory traffic stop

SEARCH & SEIZURE United States v. Cheromiah, No. 05-2168, ___ F.3d ___ (10th Cir. Aug. 2, 2006)(New Mexico). Appeal of district court’s denial of defendant’s motion to suppress drug evidence used to support conviction for conspiracy and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846, and 21 U.S.C. §§ 841(a)(1), (b)(1)(C). HELD: When evaluating officer’s decision to stop vehicle, court may not engage in “divide-and-conquer analysis” by evaluating and rejecting each factor considered by officer in isolation because factors that, by themselves, may be “consistent with innocent travel” may collectively amount to reasonable suspicion. Rather, “the totality of the circumstances – the whole picture – must be taken into account.” Accordingly, under totality of circumstances, Border Patrol officer had sufficient reasonable suspicion that van in which defendant was traveling may have been transporting illegal aliens sufficient to justify investigatory stop where: (1) agent testified he encountered van only 85 miles from border in area frequented by smugglers; (2)traffic on I-10 was especially heavy that day relative to traffic on I-25; (3) inspections at the I-10 checkpoint were minimal, but all vehicles were being stopped at the I-25 checkpoint; (4) Highway 26 on which defendant was traveling is well known “circuitous” route typically used by smugglers to avoid Border Patrol checkpoints located on nearby I-10and I-25; (5) van displayed temporary Texas tag, and when approached by agent, driver and passenger stiffened up, looked straight ahead, and avoided eye contact; (6) agent observed other persons in back of the van; one sitting up, and the other “diving” down; and (7) based on training and experience, agent knew vans typically are used to carry illegal aliens and conceal contraband. Read the opinion here.