Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. BLF10000060. Jorge C. Hernandez and Sarah Adams Christian, Judges.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendant and Appellant Anilu Ariesbeth Colula pled guilty to one count of transportation of more than 28.5 grams of marijuana, after the lower court denied both of her Penal Code section 1538.5 motions to suppress the evidence seized from a vehicle she drove through an agricultural inspection station. The sentencing court granted defendant a three-year term of formal probation with a probation term requiring her to serve 180 days in jail; the court awarded defendant 150 days credit. On appeal, defendant contends the lower courts erred in denying her motions to suppress. Defendant additionally argues that any “consent” she gave to search her vehicle was tainted by the illegal detention and the color of authority the agent exercised over her. We agree with defendant that the detention was unwarranted and, therefore, reverse the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
On March 29, 2010, the People charged defendant by felony complaint with one count of transportation of more than 28.5 grams of marijuana. (Health & Saf. Code, § 11360, subd. (a).) On April 15, 2010, defendant filed a motion to suppress the evidence seized from the vehicle she was driving. The People filed their response on April 27, 2010.
On August 29, 2010, Border Patrol Agent Phillip Cade testified at the hearing on defendant’s motion to suppress. At approximately 5:00 a.m. on March 25, 2010, he was parked in a marked patrol car observing traffic passing through an agricultural inspection station located in Blythe, California on Interstate Highway 10 (I-10), approximately 80 miles from the United States/Mexico border. Agent Cade noted a blue Chevy Impala with a single female occupant (defendant) as it approached the inspection station. Defendant “seemed to be fairly relaxed coming into the station.” Agent Cade testified that “the vehicles pretty much have to come to a stop” at the station. On the left rear passenger window, he noticed a “bar code” sticker that rental vehicles generally use; this raised suspicion because “[s]muggling organizations will use rental vehicles very often.” Nonetheless, Agent Cade testified that hundreds if not thousands of rental cars travel on the I-10 during any given week.
Agent Cade was 45 feet away from where he first noticed defendant’s demeanor upon entering the inspection station, but was 15 feet away from where she eventually stopped or slowed her vehicle while passing through the station. He later testified he was actually between 25 and 40 feet from the exit of the agricultural station. Agent Cade also testified that many drivers do not come to a complete stop when passing through the checkpoint because the inspectors just waive them through; in those instances, the cars generally slow to about five miles per hour. Agent Cade never testified whether defendant either stopped or just slowed down at the station.
Agent Cade did not know whether defendant noticed his patrol car upon passing through the inspection station; however, her demeanor changed after passing his location: “she went from being fairly relaxed, sitting a little bit forward, to both hands on the steering wheel, gripping it very tightly, kind of leaning back a little bit....” In his experience, this behavior is “a way for them to conceal their body position, conceal... who they are, what they may look like or anything of the sort, and it’s not a normal thing that you see in everyday driving.” Normally, the demeanor of persons passing through the inspection checkpoint does not change. Defendant failed to make eye contact with Agent Cade, which further aroused his suspicion, because most individuals passing through the station “will look over... to see what, if anything, is going on. You know, it’s human nature and curiosity and then [they] drive down the road.” As defendant left the station, she “seemed to accelerate rather aggressively.” However, Agent Cade also testified most drivers accelerate to increase their speed as they exit the station. Defendant neither lost traction while accelerating away from the station, nor did she exceed the speed limit; Agent Cade had no way to tell at what speed defendant was actually traveling as she left the station.
Agent Cade began to follow defendant in his patrol car, in order to take a closer look at her vehicle and run a check on her vehicle’s plates. In addition to the aforementioned indicia, which Agent Cade regarded as suspicious, was the fact that I-10 was a “known smuggling route, ” well-known for drug trafficking because it is the southernmost highway between New Mexico and Los Angeles, where there is no constant border patrol presence, i.e., no permanent fixed border checkpoint. Nonetheless, he also testified that the I-10 was the most direct route between Phoenix and Los Angeles; it was considered a major route on which a lot of vehicles travel. The early hour at which defendant was traveling was another factor arousing Agent Cade’s suspicion, because smugglers will often travel during early morning hours when there are less law enforcement officers on patrol. Agent Cade admitted that many people often leave early in order to avoid encountering traffic in Los Angeles.
As Agent Cade pulled up alongside defendant’s vehicle, defendant slowed from the posted speed limit of 70 miles per hour to 55 miles per hour; this indicated to him that “she was... trying to prevent me from getting a look at the vehicle....” He found her reduced speed unusual. Agent Cade slowed his vehicle, got behind her, and ran registration, stolen vehicle, and TECS 72-hour lane checks on the vehicle. As he was waiting for the results of the checks, which took two to three minutes, he “noticed the vehicle swerving in its a lane a little bit.... [¶]... [¶]... [T]he vehicle swerving indicated to me that she was looking in the rear view mirror, more worried about my presence behind her than the road in front of her.” Agent Cade had observed similar behavior in other drivers who were sometimes involved in smuggling activities.
A TECS check tells the agent if the vehicle had ever been involved in any prior smuggling operation, or if it had crossed the U.S./Mexican border within the preceding 72 hours.
The stolen vehicle and TECS checks came back negative. The registration check revealed that the registered owner of the vehicle was EAN Holdings (EAN). Agent Cade assumed that EAN was a nationwide rental franchise company, but could not testify as to whether EAN was a subsidiary of some other, more familiar rental company. He testified that “[w]e’ve recently encountered numerous contraband and alien smuggling cases with smugglers using vehicles that are rented from them.” “[T]hey’re a rental company that we have seized a fair amount of illegal aliens and other contraband... [¶]... [¶]... out of.” Such illegal activities involving cars rented from EAN had been occurring “for quite some time.” In fact, at least one incident had occurred at the Blythe station within the previous month. The fact that the vehicle was owned by EAN was what became determinative for Agent Cade to initiate a traffic stop: “That’s what put me over the top....” “Given all that information... I decided to initiate a vehicle stop.”
Riverside Sheriff’s Deputy Matthew Morelock testified at the preliminary hearing that the car was rented from Alamo.
Agent Cade specifically testified that he himself had arrested three illegal aliens within the past three months, presumably in vehicles owned by EAN. He also testified another agent had seized approximately 125 pounds of marijuana from the trunk of a vehicle within the last month, again, presumably from a vehicle registered to EAN.
Agent Cade activated his patrol car’s emergency lights; defendant pulled over to the side of the highway. He asked defendant her country of origin; defendant replied that she was originally from Mexico, but that she was a citizen of the United States. Agent Cade requested identification from defendant; defendant told him she only had her social security card as she could not find her driver’s license. Defendant gave Agent Cade her social security card; he commenced an immigration check on the social security number, which normally takes 10 to 15 minutes. He asked defendant from where she was coming and to where she was headed; defendant responded she was coming from her boyfriend’s residence in Tempe, Arizona and was returning home to Los Angeles. Agent Cade testified that defendant appeared nervous as he questioned her. All these factors made him believe defendant was in the country illegally.
While he was waiting for the result of the social security check, Agent Cade asked defendant for consent to search the vehicle’s trunk. She agreed. He asked her to turn off her vehicle, place her keys on the dashboard, and pull the trunk release. When he opened the trunk, Agent Cade observed seven packages bundled in trash bags, similar to how marijuana is sometimes packaged. He called for a K-9 unit in order to confirm that the packages contained narcotics. Agent Cade asked defendant to exit the car; she did so. He asked her what was in the bags; she said she had never seen them before. Agent Cade asked if he could frisk her; she agreed, and he did so. He then placed defendant in the back of his locked patrol car. When the K-9 unit arrived, the dog immediately alerted to the vehicle’s trunk. The social security check came back indicating the number did not exist, which suggested to Agent Cade that the card might be fraudulent.
The court denied defendant’s motion to suppress. The parties stipulated that the testimonies of Agent Cade and Border Patrol Agent Joel Rios, the K-9 officer, could be considered for purposes of the preliminary hearing.
Deputy Morelock then testified. He was called by the border patrol to investigate a suspected case of transporting narcotics; he arrived a little after 8:00 a.m. on March 25, 2010. Deputy Morelock took possession of the bundles and transported them to the Blythe Sheriff’s Department. He tested the substance contained in two of the seven bundles; both tested positive for marijuana. He then took out a portion of one of the other bundles and sent it to the Department of Justice for analysis; the analysis came back positive for marijuana. The total weight of all seven bundles was just under 146 pounds.
Deputy Morelock interviewed defendant; she told him she was loaned the car by “Josh, ” who had rented it. Josh allowed her to use the car so that she could return to Los Angeles, but he told her to drive safely and not to look in the trunk. Defendant was instructed to call someone to pick up the car once she arrived in Los Angeles. Defendant did not know Josh’s last name. Deputy Morelock testified that rental vehicles are often used by drug smugglers because they do not want their own vehicles seized if they are detained, and that rental vehicles are usually in compliance with the requirements of the Vehicle Code, making them less likely to be pulled over for minor infractions.
The court held defendant to answer.
On May 13, 2010, the People filed the information charging defendant with one count of transportation of more than 28.5 grams of marijuana. (Health & Saf. Code, § 11360, subd. (a).) Defendant was arraigned on the information on May 14, 2010; defense counsel announced his intention to file another Penal Code section 1538.5 motion to suppress the evidence. On May 21, 2010, defendant filed her second motion to suppress. On June 3, 2010, the People filed their response. The court held a hearing on the motion on June 7, 2010. The court noted that “those observations on the I-10 give everything... a lot of weight and credibility, even if it doesn’t necessarily make any sense about the EAN holdings car rental company[, ] but all those factors together with the foundation of the I-10 I think gave Judge Christian more than enough to deny your motion to suppress.” The court further explained, “I think the litany of factors that were laid out by the testimony of this officer plus the I-10 and everything that he did after that I think is more than enough to deny the motion.” The court denied the motion.
The court then noted that “I... indicated to all parties that I thought that the issues that were brought forth in the [section] 1538.5 [motion] were, in fact, legitimate issues. [¶] I did not see the [section] 1538[.5] [motion] as a bogus [section] 1538[.5] [motion].” Thus, the court gave defendant an indicated sentence if she pled guilty, matching the People’s plea offer prior to the preliminary hearing. The People objected to the indicated sentence. Defendant entered a plea of guilty; the court sentenced defendant as indicated.
DISCUSSION
Defendant contends Agent Cade had no reasonable, particularized suspicion of criminal activity such that he was warranted in conducting a traffic stop of her vehicle. Thus, all the evidence seized thereafter should have been suppressed. In any event, she maintains any “consent” she gave to search the vehicle was coerced. We agree with defendant that the agent did not have reasonable suspicion that criminal activity was afoot; thus, the marijuana seized should have been suppressed. As a result, we do not address defendant’s consent argument as unnecessary.
“The Fourth Amendment’s prohibition of unreasonable searches and seizures extends to the brief investigatory stop of a vehicle. [Citation.]” (United States v. Diaz-Juarez (9th Cir. 2002) 299 F.3d 1138, 1141 (Diaz-Juarez).) “The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. [Citations.] Because the ‘balance between the public interest and the individual’s right to personal security, ’ [citation], tilts in favor of a standard less than probable cause in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity ‘“may be afoot, ”’ [citations.]” (United States v. Arvizu (2002) 534 U.S. 266, 273 (Arvizu).)
Courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ [Citations.] Although an officer’s reliance on a mere “‘hunch’” is insufficient to justify a stop, [citation, ] the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [citation.]...” (Arvizu, supra, 534 U.S. at pp. 273-274.) “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. [Citation.]” (Id. at p. 277.) “On appeal, we uphold the trial court’s factual findings if they are supported by substantial evidence, but review independently its determination that the search did not violate the Fourth Amendment. [Citation.]” (People v. Troyer (2011) 51 Cal.4th 599, 606.)
Here, we find no reasonable, objective, particularized, articulable suspicion that defendant was engaged in criminal activity, even when considering the totality of the circumstances through the prism of Agent Cade’s experience and training such that he was warranted in detaining defendant. Agent Cade essentially enumerated 10 factors, which he felt justified his reasonable suspicion that defendant was engaged in criminal activity: (1) the time of day during which defendant was traveling; (2) the highway upon which defendant was traveling; (3) defendant’s failure to look Agent Cade in the eye as she passed through the agricultural inspection station; (4) defendant’s change in demeanor; (5) the rental sticker on defendant’s vehicle; (6) defendant’s sudden acceleration from the station as she left; (7) defendant’s reduction in speed as Agent Cade tailed her; (8) defendant’s looking at Agent Cade in her rear view mirror as he followed her; (9) defendant’s swerving within her lane as Agent Cade followed her; and (10) the registration of the vehicle to EAN, an entity whose cars had been used in previous criminal activities. Although we acknowledge that we are required to view all the factors itemized by Agent Cade in their entirety (Arvizu, supra, 534 U.S. at pp. 277-278; Diaz-Juarez, supra, 299 F.3d at p. 1141 [“Individual factors that may appear innocent in isolation may constitute suspicious behavior when aggregated together.”]), we shall address each reason individually and then determine whether, together, they amount to sufficient cause to detain defendant.
First, the time of travel (5:00 a.m. on Sunday, August 29, 2010) and defendant’s route (the I-10) are not, in and of themselves, inherently suspicious. These factors provided no particularized suspicion that defendant was engaged in any criminal activity. Although Agent Cade testified the early hour was one of the factors that aroused his suspicion, because smugglers commonly travel at that time due to less law enforcement officers being on patrol, he also acknowledged that many people not engaged in criminal activity leave early in order to avoid traffic once they reach Los Angeles. Agent Cade testified the I-10 was the most direct route between Phoenix and Los Angeles; it was considered a major route on which a lot of vehicles travelled. In 2009, between 23, 500 and 29, 000 vehicles traveled on average through Blythe via the I-10 every day. This would amount to a minimum of 8, 577, 500 vehicles traveling this section of the highway per year. It would not be surprising or suspicious that vehicles would be traveling on this major thoroughfare at such a time in the morning. Moreover, the People failed to adduce any evidence that there were, in fact, less law enforcement personnel on the highway at this time. Agent Cade neither testified that the border patrol actually dispatched less law enforcement personnel at this time nor did he testify that other law enforcement agencies, such as the California Highway Patrol, the Riverside County Sheriff’s Department, the Blythe Police Department, or the Drug Enforcement Agency post less officers at this time. Indeed, the People neglected to establish Agent Cade had any foundation for even rendering such an opinion. Thus, defendant’s presence on a highly traveled interstate freeway at 5:00 in the morning provided no objective basis for determining she was engaged in criminal activity.
Pursuant to Evidence Code section § 452, subdivisions (g) and (h), we take judicial notice of California Department of Transportation traffic data (http://www.dot.ca.gov/hq/traffops/saferesr/trafdata/2009all/Route7-10i.htm (as of June 23, 2011).
The facts of this case are glaringly distinguishable from Arvizu, supra, 534 U.S. 266, cited by the People, in which the defendant was traveling on a dirt road, which was barely passable in his minivan, 40 to 50 miles out of his way, extremely close to the United States/Mexican border, setting off border sensors along the way, in an apparent attempt to avoid passing through one of the border patrol’s permanent checkpoints. (Id. at pp. 270-272.) Here, defendant was traveling on a major thoroughfare approximately 80 miles from the border, and did not attempt to avoid the permanent agricultural checkpoint.
Second, defendant’s failure to look Agent Cade in the eye and her nervousness upon entering and passing through the inspection checkpoint lacks any reasonable degree of suspicion. Agent Cade testified he could not even say for certain whether defendant even saw his patrol vehicle, let alone him. Thus, defendant’s failure to look at Agent Cade could have been due to her failure to see him at all, or because there was simply no reason to look at him. Failing to meet an officer’s gaze has repeatedly been held to be a factor of no substance in a calculus for determining reasonable suspicion: “[A]voidance of eye contact has been deemed an inappropriate factor to consider unless ‘special circumstances [] make innocent avoidance of eye contact improbable.’ [Citation.]” (United States v. Hernandez-Alvarado (9th Cir. 1989) 891 F.2d 1414, 1419, fn. 6 (Hernandez-Alvarado).) “I fail to see how compliance with an elementary rule of highway safety, i.e., keeping your eyes on the traffic ahead, can demonstrate reasonable suspicion of on-going criminal activity....” (Id. at p. 1420 (conc. opn. of Alarcon, J.).) “Failing to meet the agent’s gaze... is nothing remarkable. [Citation.]” (People v. Valenzuela (1994) 28 Cal.App.4th 817, 831 (Valenzuela) [Fourth Dist., Div. Two].) “[W]e have noted that [eye] contact... is ‘of questionable value... generally.’ [Citation.] [¶] Indeed, in some cases, we have suggested that it cannot be considered at all. [Citation.]” (United States v. Montero-Camargo (9th Cir. 2006) 208 F.3d 1122, 1136 & fn. 26 (Montero-Camargo).) “The skepticism with which this factor is treated is in large part due to the fact that reliance upon ‘suspicious’ looks can so easily devolve into a case of damned if you do, equally damned if you don’t. [Citations.]” (Id. at p. 1136.) “[L]ooking at or failing to look at an officer does not, standing alone, furnish a reasonable basis for a detention.” (People v. Loewen (1983) 35 Cal.3d 117, 125, fn. 5.) Moreover, nervousness upon entering a checkpoint where law enforcement officers are present is equally undemonstrative that criminal activity is afoot: “Failure to meet the border agent’s gaze, and kneading of the steering wheel, even if indicative of nervousness, does not provide a sufficient reason to suspect defendant was in the country illegally or doing anything else illegal. [Citation.] Anyone—undocumented aliens, legal resident aliens, or citizens alike—could easily be apprehensive of a series of forced encounters with uniformed authority figures. [Citation.] In addition, the inference that ‘nervousness’ existed and was based on defendant’s desire to avoid contact with [the agent] is pure speculation.” (Valenzuela, supra, 28 Cal.App.4th at p. 828.) “Nervousness in the presence of a police officer does not furnish a reasonable basis for a detention.... As this court has observed, ‘[to] hold that police officers should in the proper discharge of their duties detain and question... all those who act nervous at the approach of officers would for practical purposes involve an abrogation of the rule requiring substantial circumstances to justify the detention and questioning of persons on the street.’ [Citations.]” (People v. Loewen, supra, 35 Cal.3d at p. 125.)
Agent Cade’s testimony that defendant aggressively accelerated upon leaving the checkpoint also lacks specific, particularized indicators of criminal activity. Although she may have left the station quicker than other cars, this could be accounted for by the type of vehicle defendant was driving. Moreover, Agent Cade himself testified that she did not “burn-out” or exceed the speed limit when leaving the station. Furthermore, he said she only “seemed” to accelerate aggressively. Indeed, Agent Cade testified he had no way of knowing the actual speed she was traveling as she exited the station. Agent Cade’s testimony that defendant’s engine sounded as if it were accelerating quickly could likewise be a quirk of the particular car she was driving. Ultimately, Agent Cade testified defendant never attempted to evade him: “We have ‘frowned on speed of the vehicle as a basis for reasonable suspicion..., pointing out that the government has argued both increases and decreases in speed constitute “suspicious” conduct, creating a “heads I win, tails you lose” trap for drivers who do not maintain constant speed.’ [Citation.]” (Diaz-Juarez, supra, 299 F.3d at p. 1148 (dis. opn. of Ferguson, J.).)
Likewise, defendant’s reduction in speed from the posted speed limit of 70 miles per hour to 55 miles per hour after Agent Cade began to follow her, is not such that it would naturally lead to suspicion of criminal activity. “In any event, it is a common, if not universal, practice for drivers and passengers alike to take note of a law enforcement vehicle coming up behind them. In fact, the most law-abiding of citizens frequently adjust their driving accordingly.” (Montero-Camargo, supra, 208 F.3d at p. 1136.) “[M]any law-abiding motorists... reduce their speed on the freeway when being followed by a law enforcement vehicle.” (Hernandez-Alvarado, supra, 891 F.2d at p. 1419.)
Similarly, defendant’s observation of Agent Cade in her rearview mirror is equally unremarkable. In fact, Agent Cade attempts to have it both ways: defendant acted suspiciously by not looking at him at the agricultural station, but then when she did look at him as he followed her this was also suspicious. This is the exact “‘“damned if you do, equally damned if you don’t”’” scenario derided in Diaz-Juarez and the cases cited therein to justify a traffic stop. (Diaz-Juarez, supra, 299 F.3d at p. 1148 (dis. opn. of Ferguson, J.).) “Had [the defendant] continued to keep her eyes on the patrol car behind [her] after her initial glance, [the agent] might well have found it equally suspicious—because she paid too much, rather than too little attention to him. It is, in fact, difficult to imagine what [the defendant] could have done at that point that might not have appeared suspicious to a Border Patrol agent.” (Montero-Camargo, supra, 208 F.3d at p. 1136, fn. omitted.) Additionally, defendant swerving within her lane “a little bit” while noting Agent Cade in the rearview mirror is not out of the realm of normal behavior when one is being tailed by a law enforcement officer.
Finally, the fact that defendant was driving a vehicle owned by EAN, a company whose vehicles had been involved in previous criminal activity, did not lend itself to a reasonable determination that all vehicles owned by EAN were involved in criminal activity, such that any such vehicle could be detained. Agent Cade testified that EAN-owned vehicles had been involved in numerous smuggling cases and that the border patrol had seized a “fair amount” of contraband and illegal aliens from vehicles rented from that company. However, Agent Cade testified specifically as to only four such cases, and he failed to expressly indicate that all four specific cases involved EAN-owned vehicles. Thus, “numerous” was translated, at best, into four previous detentions resulting in actual criminal activity. Nonetheless, Agent Cade testified he believed EAN was a nationwide rental franchise company, but could not relate whether EAN was a subsidiary or parent of some other, more well-known rental company. Deputy Morelock testified the vehicle was rented from Alamo. The People failed to adduce evidence of how many vehicles are rented by EAN or Alamo; what percentage of these vehicles pass through the Blythe checkpoint; what percentage of those rented from these companies are pulled over, and what percentage of those result in the discovery of criminal activity. Indeed, the evidence adduced at the hearing suggests a national rental company, which may perhaps rents hundreds, thousands, or even tens of thousands of vehicles every year, only a small minority of which may be involved in criminal activity. The fact that a vehicle rented from one such company has resulted in four previous confirmed criminal acts does not create a license to pull over every rental vehicle from that company.
In Hernandez-Alvarado, supra, 891 F.2d 1414, the court found insufficient cause to pull over defendant’s vehicle less than five miles from the border, when one of the factors allegedly supporting the border patrol agent’s suspicion was that the agent noticed the car had been purchased from Best Deal Auto; agents had previously seized several vehicles bearing the Best Deal Auto logo. The court noted it had “no statistics concerning the number of car dealerships in Nogales or the number of cars sold to innocent people by Best Deal Auto.” (Id. at p. 1415.) In his concurring opinion, Judge Alarcon noted, “[t]he record shows that innocent, law-abiding citizens also purchased vehicles from Best Deal Auto. If this factor can justify a detention, then all purchasers of automobiles from Best Deal Auto would be subject to random searches without proof of any particularized suspicion that they were engaged in criminal activity.” (Id. at p. 1420 (conc. opn. of Alarcon, J.).) Likewise, in United States v. Rodriguez (9th Cir. 1992) 976 F.2d 592, the court noted that one of the suspiciously troubling, recurring factors frequently cited by border patrol agents for pulling over vehicles is that the car is a rental. (Id. at p. 595.)
Although the record here does not specifically show that innocent, law-abiding citizens rented vehicles from EAN or Alamo, we cannot ignore the well recognized status of the latter company which must, in due course, have rented vehicles to many thousands of such innocent, law abiding citizens. Nor can we ignore Agent Cade’s testimony that EAN was a national franchise rental company, in which case four specific instances of criminal activity with respect to its vehicles would not equate to reasonable suspicion to detain all such vehicles. As we noted in Valenzuela, intelligence on particular types of vehicles is often of little or no value because the border patrol receive such bulletins on “‘literally hundreds of vehicles’” essentially alerting them to be on the lookout for “‘every type of vehicle imaginable.’” (Valenzuela, supra, 28 Cal.App.4th at pp. 827-828, italics omitted.)
Finally, we note the totality of the circumstances discussed above do not amount to reasonable suspicion to detain. Indeed, our separate discussion of Agent Cade’s enumerated factors supporting his suspicion may have been superfluous considering the People’s concession below that “[i]n the instant case, a Border Patrol Agent (Cade) conducted an investigative stop based upon observations of what would pass as normal conduct by a motorist.” “These observations would appear innocent and harmless and common enough to be easily explained away.” Thus, the People below relied upon a theory that the factors discussed above, when viewed solely through the prism of Agent Cade’s particular skill, experience, and training, are what converted otherwise apparently innocent conduct into a reasonable suspicion of criminal activity. We agree particular consideration and deference must be paid to what the experienced law enforcement officers may see in conduct which, to the untrained eye, may appear innocuous. “While an officer should consider these factors in light of experience detecting illegal entry and smuggling, ‘experience may not be used to give the officers unbridled discretion in making a stop.’ [Citation.] An investigatory stop must be based on facts, not the ‘mere subjective impressions of a particular officer, ’ [citation], and the inferences drawn by the officer must be objective and reasonable, [citation].” (Diaz-Juarez, supra, 299 F.3d at p. 1141.) However, when we specifically analyze the above factors in consideration of Agent Cade’s experience and training, we still fail to find any objective basis supporting the detention.
Agent Cade testified he had been a border patrol agent for only 14 months at the time of the stop. He described his primary duties as apprehending terrorists and “terrorist weapons arriving into the country illegally.” He testified he had undergone 55 days of training in the academy, but could not testify as to how many hours of training he had received in the detection of illegal narcotics transporting. This was only the third drug stop Agent Cade had been involved in and the first in which he was the primary officer; the other two stops he had been a backup agent. This was the first time Agent Cade testified. Nonetheless, he testified that he had made between 90 and 100 traffic stops in his career. Agent Cade failed to testify as to how many of the remaining 89 to 99 traffic stops resulted in arrests or citations for something other than narcotics smuggling. Thus, with the evidence we have before us, we appear to have the casting of an extremely broad net within which very few actual criminals are being caught. This is precisely the type of circumstance the Fourth Amendment was written to protect against.
Though we acknowledge he did testify he had made three arrests within the past three or four months based upon the defendants’ statuses as illegal immigrants.
As in United States v. Rodriguez, supra, 976 F.2d 592, “We believe that the factors cited here describe too many individuals to create a reasonable suspicion that this particular defendant was engaged in criminal activity. The agents tender to us the picture of innocent driving behavior but ask us to accept it as signifying criminal behavior to a trained and experienced eye. This we cannot do.” (Id. at p. 596.) “Considered jointly, these factors are insufficient to justify an investigatory stop. While they may allow certain inferences to be drawn, they describe too many individuals to create a reasonable suspicion that this particular defendant is engaged in criminal activity.” (Hernandez-Alvarado, supra, 891 F.2d at pp. 1418-1419.) “In all circumstances, ‘the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling.’ [Citation.] Nevertheless, ‘while an officer may evaluate the facts supporting reasonable suspicion in light of his experience, experience may not be used to give the officers unbridled discretion in making a stop.’ [Citations.] In other words, an officer’s experience may furnish the background against which the relevant facts are to be assessed, [citation], as long as the inferences he draws are objectively reasonable; but ‘experience’ does not in itself serve as an independent factor in the reasonable suspicion analysis.” (Montero-Camargo, supra, 208 F.3d at p. 1131.) Here, even when assessed against Agent Cade’s experience and training, the factors he enumerates do not support an objective, particularized suspicion of criminal behavior on behalf of defendant; rather, the enumerated factors describe the behavior of too many innocent travelers to justify stopping all such persons exhibiting such attributes. Thus, “[a]ll the evidence seized was obtained as a product of the unlawful detention. All the evidence seized from defendant’s car should have been suppressed.” (Valenzuela, supra, 28 Cal.App.4th at p. 830.)
DISPOSITION
The judgment is reversed.
We concur: McKINSTER, Acting P. J., KING, J.