Opinion
Argued and Submitted February 8, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendants were convicted, in the United States District Court for the Eastern District of Washington, Edward F. Shea, J., of drug offenses, and they appealed denial of suppression motion. The Court of Appeals held that: (1) officer had reasonable suspicion warranting investigatory stop of vehicle, and (2) officer had probable cause to search vehicle.
Affirmed.
Appeals from the United States District Court for the Eastern District of Washington, Edward F. Shea, District Judge, Presiding.
Before RYMER, THOMAS, and MCKEOWN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Mickey E. Griffin and Brett Coldwell appeal denial of their motion to suppress. We affirm.
Both contend that Sadler lacked reasonable suspicion to stop the vehicle. We disagree. Sadler had been told by Customs Inspector Peterson, who lived in one of the two houses on Similkimeen Road, that he saw an SUV with two occupants, one on either side, parked near the gravel pit about 11:00 p.m. The road parallels the border some 50 yards away, and dead-ends at the Nighthawk Port of Entry, which is closed after 5:00 p.m. Illegal crossings have occasionally occurred in the area. When Sadler got to the area about midnight, he observed brake lights going off and on in the distance. The vehicle reappeared several minutes later traveling in the opposite direction (toward Sadler), without headlights on. This sufficed for reasonable suspicion to stop the vehicle
Page 413.
for investigatory purposes. Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (determination of reasonable suspicion is "based on commonsense judgments and inferences about human behavior"); United States v. Mattarolo, 209 F.3d 1153, 1157 (9th Cir.2000) (time of night and surrounding area can be factors).
After Sadler stopped the vehicle, Griffin got out on the passenger side and started to come toward Sadler. Ordered to go back, he did. Approaching the vehicle, Sadler noticed hockey bags in the back that had the size and shape of bags used in the area for marijuana smuggling. He also saw that the dashboard lights had been covered by a sweatshirt. Griffin did most of the talking, and appeared nervous, sweaty and thirsty. They told Sadler they were United States citizens and were fooling around. Sadler asked for consent to search, but both refused. He decided to anyway. We are not firmly convinced that the district court erred in finding these facts. Added to what Sadler already knew, we agree with the district court that these further observations gave the agent probable cause to believe that the vehicle contained evidence of a crime. See United States v. Hatley, 15 F.3d 856 (9th Cir.1994).
We assume, without deciding, that Griffin has standing to challenge the search.
AFFIRMED.