## F I L E D United States Court of Appeals Tenth Circuit 

### APR 21 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. LUZ MARIA VALENZUELA, Defendant - Appellee. No. 03-2210

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-03-218-JC)
Laura Fashing, Assistant United States Attorney, (D avid C. Iglesias, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff - Appellant. Rosanne Camunez, Las Cruces, New Mexico, for Defend ant - Appellee.

Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge and HARTZ , Circuit Judge.

KELLY , Circuit Judge.

The government appeals from an order of the distric t court granting Defendant-Appellee Luz Maria Valenzuela’s motion to suppress statements made- 2 -

after her arrest. Ms. Valenzuela and a codefendantwere indicted for conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B), and possession with i ntent to distribute 100 kilograms or more of marijuana, 21 U.S.C. § 841(a)( 1), (b)(1)(B) and 18 U.S.C. § 2. The district court held that Ms. Valenzuela w as arrested without probable cause at roadside when she was handcuffed and broug ht to the border patrol station. Accordingly, the district suppressed her post-arrest statements. We have jurisdiction pursuant to 18 U.S.C. § 3731, and we a ffirm.

Background On November 21, 2002, at about 9:00 a.m., Border Patrol Agent Eugene Lewis was driving southbound on New Mexico State Hi ghway 11. Highway 11 is the main route for northbound traffic going throughDeming, New Mexico to Interstate 10. About four miles south of Deming, A gent Lewis observed a white Chevrolet pickup truck driving northbound with an A merican flag displayed on the hood and an American flag screen on the rear wi ndow. The truck bore an Arizona license plate. A maroon Cadillac was trave ling in the same direction two or three cars behind the pickup truck and also bore an Arizona license plate. The truck and Cadillac aroused Agent Lewis’s suspicions because of several recent alien smuggling cases involving Arizona vehicles. Agent Lewis turned around to- 3 -

get a closer look at the two vehicles. As Agent Lewis approached the Cadillac, he noticed it was covered in a fine layer of dust, as if it had recently been driv en on a dirt road. Agent Lewis also noticed that there was something odd about the bumper holding the trim in place, and that the Cadillac was weighted down in t he back. As Agent Lewis passed the Cadillac, the driver slow ed down so that he was now further behind the pickup truck. The driver ap peared to grip the wheel tightly and looked straight ahead without looking at the agent or otherwise acknowledging the agent’s presence. Agent Lewis ra dioed in a check on the vehicle’s registration, a stolen vehicle check, and a 72-hour lane check. The 72- hour lane check revealed that the Cadillac had not crossed into the United States from Mexico within the preceding 72 hours; the regi stration check showed that the owner of the Cadillac was a female, but Agent L ewis had seen that the driver was a male. Continuing on Highway 11, Agent Lewis passed the Ca dillac and the two vehicles that were between the Cadillac and the pic kup truck. As he passed the pickup truck, the Agent Lewis saw the driver’s headwas resting on his or her hand, and the hand was covering the left side of th e driver’s face so that Agent Lewis could not determine whether the driver was ma le or female. Agent Lewis continued to drive towards Deming, wher e he pulled over to- 4 -

get a second look at the Cadillac. He again notice d that the Cadillac appeared to be weighted down in the back, and radioed Agent Ric hard Huerta to assist in stopping the Cadillac. Agent Lewis then pulled bac k onto Highway 11 to follow the Cadillac, but was unable to get directly behind it because of traffic. Agent Lewis next saw the two vehicles in Deming, an d noted that the Cadillac sometimes traveled directly behind the pic kup truck. Agent Lewis lost sight of the vehicles where Highway 11 passes underInterstate 10. In total, the two vehicles went through two stop signs and three stop lights from the point where Agent Lewis first observed them on Highway 11 to where they entered Interstate 10, approximately seven miles later. Because both vehicles had Arizona plates, Agent Lew is suspected that they were driving in tandem and would turn onto westboun d Interstate 10 towards Arizona. About eight miles from the intersection o f Highway 11 and Interstate 10, Agent Lewis spotted the Cadillac as it was chan ging lanes and passing other vehicles. Agent Lewis sped up, and as he approache d the Cadillac, he also saw that the pickup truck was about a quarter mile behi nd the Cadillac. Several tractor trailers and other vehicles were between th e Cadillac and the pickup truck. Agent Lewis passed the pickup truck, and pulled in behind the Cadillac. The Cadillac, which had been traveling at about 80 miles per hour in a 75 mile per hour zone, then slowed down to about 50-60 mile s per hour. The pickup truck- 5 -

then passed Agent Lewis and the Cadillac, at which point Agent Lewis radioed Agent Huerta to tell him to look for it. Agent Lew is activated his emergency equipment and stopped the Cadillac. Agent Lewis approached the driver, Julio Armando Re ynaga-Cortes, and questioned him about his citizenship. At first Mr. Renaga acted confused, but then he said that he was from Mexico. Upon Agent L ewis’s request, Mr. Reynaga produced two Republic of Mexico passports. Mr. Rey naga was visibly nervous and unable to locate the Visas in the passports. A gent Lewis then asked to see what was in the trunk. At first, Mr. Reynaga askedwhy he wanted to know, but upon repeated requests, Mr. Reynaga opened the trun k. Inside were bundles of marijuana. Mr. Reynaga said he did not know the vehicle had anything in the trunk, and that he had picked up the vehicle at the Fina g as station in Columbus. Mr. Reynaga did not indicate that he was traveling with the pickup truck, nor was he asked any questions about the pickup truck at that point. Agent Lewis then radioed Agent Huerta, informed himthat marijuana had been found in the Cadillac and that the two vehicle s were traveling in tandem, and asked Agent Huerta to stop the pickup truck and see if he could transport the driver to the Deming border patrol station. Agent Huerta accordingly stopped the truck and aske d the driver, Ms.- 6 -

Valenzuela, to accompany him to the station; Ms. Va lenzuela agreed. Agent Huerta, however, did not allow Ms. Valenzuela to fo llow him to the station in her own truck. Instead, he took her keys and driver’s license, and another agent drove her vehicle to the station. Because no femal e agents were present to pat down Ms. Valenzuela for weapons, an agent placed he r in handcuffs prior to transporting her to the station. Ms. Valenzuela wa s cooperative with Agent Huerta at all times. Up until the time Ms. Valenzu ela agreed to go to the station, Agent Lewis did not inform her that he was going to handcuff her. When Ms. Valenzuela was handcuffed, Agent Huerta observed no thing that made him think she was carrying drugs in her vehicle, possessed a weapon, or was otherwise dangerous or violating the law. At the border patrol station, Agent Huerta advised Ms. Valenzuela of her Mirandarights, and Ms. Valenzuela signed a form indicatin g her understanding and waiver of those rights. Agent Christine Britol questioned Valenzuela for about 40 to 45 minutes, during which time Ms. Valen zuela made several incriminating statements. Finally, Ms. Valenzuela invoked her right to an attorney. After an evidentiary hearing, the district court fo und that Ms. Valenzuela was arrested at roadside at the time the handcuffs were placed upon her. The parties then submitted supplemental briefs on wheth er probable cause existed to- 7 -

arrest Ms. Valenzuela. In a written opinion, the d istrict court then considered and rejected six factors claimed by the government to s upport probable cause: (1) both the Cadillac and the truck driven by Defendant Vale nzuela bore Arizona license plates, (2) Defendant Valenzuela and the driver of the Cadillac drove near each other on two highways close to the border, (3) whenAgent Lewis passed Ms. Valenzuela’s truck, her left hand was covering her face, (4) after Agent Lewis pulled in behind the Cadillac, Ms. Valenzuela passe d the Cadillac rather than remain nearby to render assistance, (5) the Cadilla c was covered with dust while the pickup truck was not, and (6) approximately 250 pounds of marijuana were found in the Cadillac. In a nutshell, the districtcourt found that the government simply had not shown a nexus between the Cadillac and the pickup truck at the time of the arrest. No objective evidence supporte d the government’s contention that the Cadillac and the pickup truck were traveli ng in tandem. Having lost the probable cause issue, the government then moved for reconsideration of the district court’s finding that Ms. Valenzuela was arrested at the time she was handcuffed. The government also r equested a supplemental hearing to develop facts as to when Ms. Valenzuela was arrested. The district court rightly viewed the request for another hearin g as “a second bite at the apple.” Aplt. App. at 104. It denied both request s, reasoning that the issue of when Ms. Valenzuela was arrested was plainly before the court, there having been- 8 -

two rounds of briefing. Further, the court held th at a finding contrary to the original determination would be completely against the evidence developed at the suppression hearing.

Discussion The government’s only argument on appeal is that th e border patrol agents had probable cause to arrest Ms. Valenzuela when th ey took her to the border patrol station for questioning. The government doe s not challenge the district court’s finding that Ms. Valenzuela was arrested wh en she was handcuffed, nor the district court’s denial of the government’s req uest to reopen the matter. In reviewing a district court’s order to suppress evidence, we review the district court’s factual findings for clear error, considering the evidence in the light most favorable to the district court’s determ ination. United States v. Rice , 358 F.3d 1268, 1273-74 (10th Cir. 2004). The ulti mate determination of whether probable cause to arrest existed is a legal issue that we review de novo. United States v. Edwards , 242 F.3d 928, 933 (10th Cir. 2003). An arrest is “characterized by highly intrusive or lengthy search or detention,” and must therefore be supported by prob able cause. Oliver v. Woods , 209 F.3d 1179, 1185 (10th Cir. 2000); see also Tennessee v. Garner , 471 U.S. 1, 7 (1985). Probable cause to arrest exists only when the “facts and circumstances- 9 -

within the officers’ knowledge, and of which they h ave reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Edwards , 242 F.3d at 934; see also Draper v. United States , 358 U.S. 307, 313 (1959). Although “[p]robable cause does not require facts sufficientfor a finding of guilt . . . , it does require more than mere suspicion.” United States v. Morris , 247 F.3d 1080, 1088 (10th Cir. 2001) (internal quotation marks omi tted). The Supreme Court has made the following distinction between reasonable s uspicion, which is sufficient for an investigatory stop under Terry v. Ohio , 392 U.S. 1 (1968), and probable cause, which is required before an arrest can be ma de: Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspici on can be established with information that is different in q uantity or content than that required to establish probable ca use, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show pr obable cause. Alabama v. White , 496 U.S. 325, 330 (1990). Probable cause is measured against an objective standard. Beck v. Ohio , 379 U.S. 89, 96 (1964). The subjective belief of a n individual officer as to whether there was probable cause for making an arre st is not dispositive. Florida v. Royer , 460 U.S. 491, 507; United States. v. Treto-Haro , 287 F.3d 1000, 1006 (10th Cir. 2002). Thus, the primary concern is “wh ether a reasonable officer would have believed that probable cause existed to arrest the defendant based on- 10 -

the information possessed by the arresting officer. ” Olsen v. Layton Hills Mall , 312 F.3d 1304, 1312 (10th Cir. 2002) (internal quot ation marks and alterations omitted). The government argues that “[o]nce Agent Lewis stop ped the Cadillac and found 250 pounds of marijuana in the trunk, he had probable cause to believe that the driver of the pickup was acting in concert withthe driver of the Cadillac.” Aplt. Br. at 13. Significantly, the government doe s not argue that probable cause arose at any point after Ms. Valenzuela’s truck was pulled over. According to the government, there was probable cause to arrest Ms. Valenzuela because (1) “Valenzuela drove in close proximity to the Cadilla c for twenty-five miles on two separate highways and through a town where there we re many opportunities to turn off the road or stop;” (2) “although the pickup and the Cadillac traded positions and sometimes allowed several vehicles to drive between them, the pickup led the Cadillac through Deming, the most co mplicated part of the trip;” (3) “both cars had Arizona license plates, which wa s consistent with Agent Lewis’s experience and knowledge of recent alien sm uggling cases;” (4) “Reynaga, the driver of the Cadillac[,] was confuse d and not fluent in English, making it probable that he had followed another dri ver through Deming, the most complicated part of the trip;” (5) “the pickup was covered with two large American flag decals, which was the sort of highly conspicuous marking typical- 11 -

of a scout vehicle;” (6) “the Cadillac was covered in a fine layer of dust, consistent with having traveled on a dirt road and being the load vehicle, while the pickup was clean, consistent with being the sco ut vehicle;” (7) “Valenzuela’s hand was covering the left side of her face as Agent Lewis passed her, possibly in an effort to conceal herself from the agent;” and ( 8) “Valenzuela and Reynaga were traveling within fifty miles of the Mexican bo rder along a route that is often used to smuggle aliens and drugs.” Aplt. Br. at 12 -13. The government also relies on the fact that Agent Lewis found 250 pound s of marijuana in Mr. Reynaga’s trunk. We hold that the district court correctly evaluated the similar factors before it, and the additional factors now relied upon by t he government as supporting probable cause are both waived and without merit. Because the government has pointed out eight specific facts that it argues sup port probable cause to arrest, we will address these facts in the order presented abo ve. We note, however, that no single factor is determinative, and we view the cir cumstances in their totality rather than individually. As the government correc tly points out, courts may not engage in a “divide-and-conquer” analysis of facts to determine whether probable cause existed. See United States v. Arvizu , 534 U.S. 266, 274 (2002). However, neither may a court arrive at probable cau se simply by piling hunch upon hunch. Thus, in assessing the totality of the circumstances, a- 12 -

reviewing court “must examine the facts individuall y in their context to determine whether rational inferences can be drawn from them” that support a probable cause determination. United States v. Martinez-Cig arroa , 44 F.3d 908, 911 (10th Cir. 1995). A factor does not become irrelevant si mply because it is “readily susceptible to an innocent explanation.” Arvizu , 534 U.S. at 274. Thus, in determining whether probable cause to arrest existe d, we look not only to the facts supporting probable cause, but also to those that militate against it. United States v. Johnson , __ F.3d __, No. 03-2153, 2004 WL 811809, at *7 (1 0th Cir. Apr. 15, 2004). The government places great weight on the fact thatMs. Valenzuela and Mr. Reynaga were traveling in “close proximity” to each other. However, when we strip away the rhetoric we have only two facts–b oth vehicles had Arizona plates and both were heading toward Arizona on an I nterstate highway. Hardly unusual. Although other circuits have noted that tandem driv ing may be indicative of criminal activity in certain circumstances, see United States v. Montero-Camargo , 208 F.3d 1122, 1139 (9th Cir. 2000), we agree with the district court’s conclusion that there are insufficient facts to demonstrate th at the pickup truck was driving in tandem with the Cadillac. While Agent Lewis follow ed the two vehicles for approximately 25 miles, he lost contact with both v ehicles for at least eight of- 13 -

those miles. Aplt. App. at 121, 146. When Agent L ewis initially observed the vehicles on Highway 11, two other vehicles separate d the Cadillac from Ms. Valenzuela’s truck. Id. at 119-20. Moreover, for the approximately seven miles that agent Lewis followed the vehicles on Highway 1 1, there were cars between the Cadillac and Ms. Valenzuela’s truck. Id. at 146. On Interstate 10, Agent Lewis lost sight of Ms. Val enzuela’s truck, but spotted the Cadillac speeding ahead. Once Agent Le wis located both vehicles on the Interstate, the closest he saw them was a distance of a quarter mile. Id. at 147. The truck was traveling in a different lane, separated from the Cadillac by a number of tractor-trailer rigs and other vehicles. Id. at 148. In fact, the only time Agent Lewis ever saw the Cadillac and truck actuall y travel next to each other, with the Cadillac directly behind the truck, was as both vehicles were clearing the intersection of Pine Street and Gold in Deming–by the entrance of Interstate 10–right before he lost them. Id. at 131-32. We also find record support for the district court’ s conclusion that adequate evidence did not support a theory that the truck wa s the lead (scout) vehicle for the Cadillac. Although Ms. Valenzuela’s truck was driving ahead of the Cadillac on Highway 11, that was not the case on the Interst ate, where the pickup truck was a quarter mile behind the Cadillac. This under mines any “infer[ence] that the lead car-load car scheme was being used [because] the purported scout car was- 14 -

actually following, rather than preceding, the lead car.” United States v. Barnard , 553 F.2d 389, 392 n.5 (5th Cir. 1977); see also United States v. Escamilla , 560 F.2d 1229, 1234 (5th Cir. 1977) (“the so-called ‘sc out car’ here was behind, rather than in front of, the ‘load car’, a circumst ance . . . which forbids the use of the ‘lead car-load car’ inference”); United States v. Barragan-Martinez , 504 F.2d 1155, 1157 (9th Cir. 1974). The government underst andably attempts to downplay the fact that the pickup truck was lagging far behind the Cadillac, but in considering the totality of the circumstances we mu st give due weight to it. Additionally, according to Agent Lewis, lead vehicl es usually “scout[] the highway . . . for law enforcement,” “run interferen ce,” or “try to draw your attention away from the load vehicle” by speeding up or driving erratically. Aplt. App. at 154. Agent Lewis testified that the pickup truck was not speeding, driving too slowly, trying to evade him, or driving improperly in any way. Id. at 140. On the contrary, it was the Cadillac that was speeding on Interstate 10 while the truck was driving at a normal speed. Id. at 158. Indeed, Agent Lewis acknowledged that nothing in the manner the two veh icles were traveling on Interstate 10 led him to believe they were driving in tandem; had he not seen the truck and the Cadillac driving on Highway 11 earlie r, he would not have made any association between them. Id. at 148. The district court also rejected the theory that Ms . Valenzuela’s driving- 15 -

past the Cadillac and Agent Lewis on Interstate 10 after Agent Lewis pulled in behind the Cadillac constitutes evidence of tandem driving that would support probable cause. According to the government, becau se an innocent person driving in tandem with a vehicle that is pulled ove r most likely would stop to render assistance, Ms. Valenzuela’s failure to rend er assistance to Mr. Reynaga is inconsistent with legitimate or innocent tandem dri ving. Had Ms. Valenzuela stopped, that might be evidence of tandem driving. But to argue that her proceeding on her way is evidence of tandem driving (be it legitimate or illegitimate) is preposterous. United States v. Si gmond-Ballesteros , 285 F.3d 1117, 1122 (9th Cir. 2001). As the district court noted, “[t]he much more logical conclusion is that Defendant passed by Agent Lewis and the Cadillac because she was not driving in tandem with the Cadillac.” Aplt . App. at 80. The government also argues that tandem driving was evident because the two vehicles drove “through a town where there were many opportunities to turn off the road or stop,” and “the pickup led the Cadi llac through Deming, the most complicated part of the trip.” Aplt. Br. at 12-13. We take judicial notice that Deming, although a lovely town, is hardly a metropo lis, and is on the route to Arizona. Indeed, Agent Lewis acknowledged that Hig hway 11 to westbound Interstate 10 is the main route to Arizona. Aplt. App. at 133. This is not an instance where two vehicles were traveling on a sel dom-used remote road to avoid- 16 -

detection. Instead, the two cars, close to the Ari zona border, were both taking the most direct highway to Arizona amidst the mid-morni ng traffic. We also agree with the district court that Arizona license plates on both vehicles (seventy miles away from Arizona) are hard ly indicative of illegal activity or tandem driving. See United States v. Martinez-Cigarroa , 44 F.3d 908, 911 (10th Cir. 1995). The government argues that A rizona plates triggered Agent Lewis’s knowledge of recent alien smuggling cases. However, no evidence in the district court established how many recent border p atrol stops due to illegal smuggling activity involved vehicles with Arizona p lates and how many Arizona vehicles on legitimate business are generally foundin the area. Thus, this case is remarkably similar to United States v. Monsisvais , 907 F.2d 987, 991 (10th Cir. 1990), where we noted that “[a]lthough Arizona cars must certainly be less common on this stretch of road than those bearing N ew Mexico plates, we cannot find any basis in the record from which to conclude that Arizona-plated vehicles are any more likely to be transporting aliens near Truth or Consequences than are vehicles bearing the license plates of New Mexico o r, for that matter, Texas or Colorado.” The government relies upon United States v. Monte ro-Camargo , 208 F.3d 1122 (9th Cir. 2000), in arguing the significance o f the license plates to smuggling. But that case is readily distinguishabl e. While the two vehicles in- 17 -

Montero-Camargo had foreign (Mexicali) license plates, they both t urned around in the middle of a highway shortly before a police checkpoint and pulled off the shoulder together, stopping in an area where crimin al activity often took place. More importantly, the circumstances in Montero-Camargo –as well as United States v. Arbizo , No. 89-10635, 1991 WL 33102 (9th Cir. Mar. 12, 19 91), also cited by the government–only supported reasonable s uspicion for a stop, notthe more demanding standard of probable cause for an arrest of a driver. Even insofar as establishing reasonable suspicion, the s ignificance of such evidence is far from certain. As the Ninth Circuit stated in l imiting the effect of two cars driving in close proximity to each other, such occu rrences “may be given some direct weight in the reasonable suspicion analysis. They do not, however, constitute substantial factors. . . .” Montero-Cam argo , 208 F.3d at 1139. In further support of its tandem driving theory, th e government argues that Mr. Reynaga’s apparent confusion and lack of Englis h fluency make it more probable than not that he followed another driver through Deming, the most complicated part of the trip. First, the governmen t did not assert Mr. Reynaga’s confusion and language abilities as a considerationin the probable cause analysis in the district court, see Aplt. App. at 35-36, and the court did not evaluat e it for this purpose. We are thus under no obligation to c onsider it. Thompson v. United
States , 223 F.3d 1206, 1211 (10th Cir. 2000). Even if th e factor were raised,- 18 -

however, it is essentially a non sequitur. The gov ernment has provided us with no authority tending to show that a driver’s confusionupon being stopped or lack of English fluency makes it any more likely that a dri ver in front of him, or in this case behind him, is committing a crime, and we have found no such authority in our research. We know of no New Mexico or Arizona language requirements for drivers, cf. Maso v. State of N.M. Taxation & Rev. Dept. , 85 P.3d 276, 282 (N.M. Ct. App. 2004), and it is simply unremarkable that a driver thirty miles north of the Mexican border would have some difficulty conve rsing in English. Moreover, the record lacks any evidence suggesting that Mr. R eynaga needed any assistance in his travel, or that the travel through Deming to Interstate 10 was complicated in
any way. The government also argues that the flags displayedon the truck provide a highly conspicuous appearance consistent with a lea d vehicle. Again, the government raises this consideration for the first time on appeal, and the district court did not make factual findings supporting this line of argument. The record is silent as to the size or noticeability of these flags, but even if conspicuous, the government’s ipse dixit that large American flag de cals are the sort of highly conspicuous markings of a scout vehicle strikes us as beyond the pale. In this post-September 11th day and age, it is not at all u nusual for drivers to adorn their cars with such symbols of patriotism. See Leslie Linthicum & Lloyd Jojola, An- 19 -

Uncommon Year , Albuquerque Journal, Dec. 30, 2001, at A1. In re viewing the totality of the circumstances, this fact does not a dd considerable weight to our probable cause analysis. Cf. Reid v. Georgia , 448 U.S. 438, 441 (1980) (conduct that “describe[s] a very large category of presumab ly innocent travelers” is insufficient to constitute a reasonable suspicion). The government makes much of the fact that “the Cad illac was covered in a fine layer of dust, consistent with having traveledon a dirt road and being the load vehicle, while the pickup was clean, consistent with being the scout vehicle.” Aplt. Br. at 13. According to the government, it i s not unusual for a load car to enter the United States from Mexico using dirt road s to avoid the Port of Entry at Columbus, and then meet the lead car, which waits a cross the border. Given the dearth of evidence that would support a tandem arrangement, we agree with the district court that this highly overinclusive rule counts for little. Nothing (other than a hunch) connects the dust on the Cadillac wit h the lack of dust on the truck. Without at least some more evidence as to the frequ ency of such dirty car-clean car situations, it appears that the dissimilarity w ould, if anything, tend to detract from the lead car-load car theory. The government’s argument that Ms. Valenzuela’s cov ering of her face adds to a probable cause determination does not withstand analysis. In support of this claim, Agent Lewis testified that he observed Ms. Valenzuela leaning her- 20 -

head on her hand while driving, and leaning her armon the driver’s side door of the truck. Aplt. App. at 134. However, Agent Lewi s testified that Ms. Valenzuela was already resting the left side of herface in her left hand when he first saw her, and he never saw her put her hand up to her face in an effort to hide. Id. at 161. In fact, Agent Lewis admitted that based on his observation of Ms. Valenzuela, it was as likely for her to have be en relaxing while driving as it was for her to be trying to hide her face. Id. at 134-35. The district court, in interpreting this evidence, found that Ms. Valenzue la “maintained this position as a way to relax while driving.” Id. at 80. Because the district court was in the best position to weigh the evidence, we appropriate ly defer to its findings of fact. Moreover, in undertaking probable cause determinati ons, we have recognized that “[s]ome facts must be outrightly dismissed as so in nocent or susceptible to varying interpretations as to be innocuous.” Unite d States v. Lee , 73 F.3d 1034, 1039 (10th Cir. 1996). Ms. Valenzuela’s resting of her head in her hand while driving is just such a fact. See United States v. Welker , 689 F.2d 167, 169 (10th Cir. 1982). The government next urges that the two vehicles wer e traveling within fifty miles of the Mexican border along a route that is o ften used to smuggle aliens and drugs. It is true that proximity to the border is a relevant factor in determining whether there is reasonable suspicionto stop a vehicle in the border area. See- 21 -

United States v. Brignoni-Ponce , 422 U.S. 873, 884-85 (1975). However, because “[r]oads near the border carry not only aliens seek ing to enter the country illegally, but a large volume of legitimate traffic as well,” the mere fact that the two vehicles were traveling close to the Mexican bo rder does not dispense with the probable cause requirement. Id. at 882. In light of the more demanding standard of probable case, coupled with the governm ent’s lack of evidence that Ms. Valenzuela’s driving raised any legitimate susp icions of illegal activity, we do not think that this fact adds any significant we ight to our analysis, as “mere proximity to the border does not automatically plac e the citizenry within a deconstitutionalized zone.” United States v. Newel l , 506 F.2d 401, 405 (5th Cir. 1975) (internal quotation marks omitted). In light of the above, the presence of marijuana in Mr. Reynaga’s vehicle adds little to the probable cause analysis. We hav e considered the totality of the circumstances known to the border patrol agents, an d conclude that the evidence connecting Ms. Valenzuela to the unlawful endeavor in the Cadillac was simply missing when the arrest occurred. Finally, the government argues that the district co urt should have deferred to Agent Lewis’s expertise in making inferences fro m these facts. In support of this argument, the government relies on United Stat es v. Gandara-Salinas , 327 F.3d 1127 (10th Cir. 2003). Gandaras-Salinas , however, held only that courts- 22 -

should accord proper deference “to an officer’s abi lity to distinguish between innocent and suspicious actions.” Id. at 1130. It is true that “[i]n reviewing onthe-scene judgments of police officers we must, of course, remember that police officers may well ‘draw inferences and make deducti ons . . . that might well elude an untrained person.’” United States v. Myers , 308 F.3d 251, 255 (3d Cir. 2002) (quoting United States v. Cortez , 449 U.S. 411, 418 (1981)). However, “an officer’s inferences and deductions can only justif y a warrantless arrest if the government satisfies its burden of establishing the probable cause necessary to support the arrest.” Id. Additionally, in making our probable cause determination, we must look at the facts through th e scope of a reasonable officer. United States v. Anderson , 981 F.2d 1560, 1566 (10th Cir. 1992). To defer t o an officer’s interpretation of the facts without apply ing judgment informed by the Fourth Amendment would eviscerate the need for a ju dicial determination of probable cause. The inescapable conclusion to be drawn from the rec ord is that Agents Lewis and Huerta suffered from a lack of communicat ion and failed to fully investigate the facts before arresting Ms. Valenzue la. Agent Lewis testified that he only told Agent Huerta to stop the vehicle and s ee if he could transport Ms. Valenzuela to the border patrol station. Aplt. App . at 162-63. It is not exactly clear why Agent Huerta felt compelled to handcuff M s. Valenzuela and put her in- 23 -

the back of his vehicle, particularly since she had consented to go to the station to answer questions. Moreover, despite his suspicions , Agent Lewis failed to use any available investigative tools to confirm his th oughts. Remarkably, none of the agents ever even asked Mr. Reynaga or Ms. Valen zuela at roadside whether they were traveling together. Careless police workdoes not justify dispensing with the Fourth Amendment.
AFFIRMED.