FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-50498 Plaintiff-Appellee,

D.C. No.

v.  3:08-cr-00547-JM-1

RICARDO IVAN PALOS-MARQUEZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Jeffrey T. Miller, District Judge, Presiding

Argued and Submitted

November 4, 2009—Pasadena, California

Filed January 19, 2010

Before: Mary M. Schroeder, Marsha S. Berzon, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

1249
COUNSEL

Erick L. Guzman, Federal Defenders of San Diego, Inc., San

Diego, California, counsel for the appellant.

David L. Katz, Office of the United States Attorney, San

Diego, California, counsel for the appellee.

OPINION

IKUTA, Circuit Judge:

We must decide whether an in-person tip by an unidentified

informant provided reasonable suspicion to support border

patrol agents’ investigatory stop of a vehicle. We hold that

such a tip can have significant indicia of reliability, and in

light of the totality of the circumstances, there was reasonable

suspicion to justify the stop at issue. Therefore, we affirm the

judgment of the district court.

I

The investigatory stop at issue occurred on Otay Lakes

Road, which is an east-west road five miles north of the

United States/Mexican border in an area described as notorious for alien smuggling. As United States Border Patrol

Agent Staunton drove around a sharp bend in the road, he saw

a dark-colored Dodge Ram pickup truck traveling west in his

eastbound lane. The pickup was attempting to pass a westbound UPS truck. Staunton veered to avoid a collision with

the pickup, which passed him and continued west. Staunton

testified the pickup was traveling “faster than normal” given

the conditions of the road. 

When a UPS truck passed Staunton, its driver gestured to

get Staunton’s attention regarding the pickup. Staunton testi1252 UNITED STATES v. PALOS-MARQUEZ
fied that his knowledge of the area’s connection with alien

smuggling and the atypically fast speed at which the pickup

was traveling, coupled with the UPS driver’s gesture, caused

him to suspect that the pickup might be loaded with contraband. He radioed to Border Patrol intern1

 agents Simon and

Martinez, who were situated farther west on the same road, to

be on the lookout for the pickup that was “driving erratically

[and] that almost ran [him] off the road.” Within seconds,

Simon radioed to Staunton that he had a visual of the truck.

One minute later, the UPS driver pulled over at Simon’s location and reported that he had seen the pickup load up with

several suspected illegal aliens. Simon immediately radioed

back to Staunton, informing him of the UPS driver’s report.

Simon did not obtain the UPS driver’s name or license plate

number. 

Staunton then put a call out over the radio to agents in the

area, describing the make and model of the pickup and the

UPS driver’s report. Within minutes of the broadcast, Agent

Padron saw the pickup traveling west on Otay Lakes Road at

a high rate of speed, as described by the report. When the

pickup stopped at the traffic light, an unmarked car of plainclothes Border Patrol agents (“BIC” agents) was able to pull

alongside it, and reported that its occupants looked “nervous

and shaky.” Approximately five minutes after Padron had first

seen the pickup, he and the other agents initiated a stop. They

found four illegal aliens in the pickup that Palos-Marquez was

driving. 

Palos-Marquez was charged in a five-count indictment with

transportation of illegal aliens and aiding and abetting the

commission of that crime in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii) and (v)(II). Palos-Marquez moved to suppress the fact that illegal aliens were found in the pickup by

1Agent Staunton testified that Border Patrol interns are agents still in

their probationary period, whom the senior agents watch over until they

pass their ten-month exam. 

UNITED STATES v. PALOS-MARQUEZ 1253
arguing that the agents lacked reasonable suspicion to initiate

the stop. After an evidentiary hearing, the district court stated

that “in the words of Agent Staunton” the area was notorious

for alien smuggling and in close proximity to the border.

According to the district court, those facts, combined with the

pickup’s near accident with Staunton and the UPS driver’s

gesturing, put Staunton on notice that Palos-Marquez “could

be a load driver.” Taking into account Staunton’s initial suspicions, coupled with the UPS driver’s “highly reliable” report

to Border Patrol agents that he had seen the pickup driver

“taking on a load of individuals by the side of the road,” the

district court held there was “more than reasonable suspicion”

to justify the stop, and denied the motion to suppress.

Pursuant to a plea agreement, Palos-Marquez pled guilty to

one count of the indictment, reserving the right to appeal the

district court’s ruling that there was reasonable suspicion for

agents to conduct the stop of his vehicle. Judgment was

entered and this timely appeal followed.

II

We review de novo whether there is reasonable suspicion

to justify a stop, United States v. Sigmond-Ballesteros, 285

F.3d 1117, 1121 (9th Cir. 2002), and the district court’s denial

of a motion to suppress, United States v. Bautista, 362 F.3d

584, 588-89 (9th Cir. 2004). The district court’s underlying

factual findings are reviewed for clear error. United States v.

Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004).

III

An investigatory stop does not violate the Fourth Amendment “if the officer has a reasonable suspicion supported by

articulable facts that criminal activity ‘may be afoot.’ ” United

States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v.

Ohio, 392 U.S. 1, 30 (1968)). To determine whether a stop

was supported by reasonable suspicion, “we consider

1254 UNITED STATES v. PALOS-MARQUEZ
whether, in light of the totality of the circumstances, the officer had a ‘particularized and objective basis for suspecting the

particular person stopped of criminal activity.’ ” United States

v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

A

[1] An officer may justify an investigatory stop based

solely or substantially on an informant’s tip, depending on its

reliability. At its most reliable, an informant’s tip alone may

sufficiently establish reasonable suspicion for a stop. Thus, in

Adams v. Williams, the Supreme Court held that where an

informant who had provided information in the past and was

known to the officer made an in-person tip “that an individual

seated in a nearby vehicle was carrying narcotics and had a

gun at his waist,” 407 U.S. 143, 145 (1972), the tip “carried

enough indicia of reliability to justify the officer’s forcible

stop” of the defendant, id. at 147. At the other end of the reliability spectrum, the Court in Florida v. J.L. held that a tip

from an anonymous caller telephoning from an unknown

location, who reported only that “a young black male standing

at a particular bus stop and wearing a plaid shirt was carrying

a gun,” lacked any indicia of reliability and could not provide

reasonable suspicion for an investigatory stop. 529 U.S. 266,

268-69 (2000). 

[2] When the tip is provided in a face-to-face encounter,

even when the informant is unidentified, we have deemed it

to be closer to the Adams end of this reliability spectrum. See

United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th

Cir. 1978). In Sierra-Hernandez, a Border Patrol agent was

approached by a man wearing overalls, a baseball cap, and

driving a late-model Mercedes Benz. Id. at 762. The man

pointed to a nearby pickup truck and said, “[t]he black pickup

truck just loaded with weed at the canebreak.” Id. The agent,

without asking the man for his name or other identifying

information, stopped the truck and discovered marijuana. Id.

UNITED STATES v. PALOS-MARQUEZ 1255
We held the in-person tip was sufficiently reliable to justify

the stop. Id. at 763-64. We reasoned that by “presenting himself to the agent and doing so while driving a car from which

his identity might easily be traced, the informant was in a

position to be held accountable for his intervention,” and the

“reliability of the information was thus increased.” Id. at 763.

[3] Courts have indicated that the in-person nature of a tip

gives it substantial indicia of reliability for two reasons. First,

as explained above, an in-person informant risks losing anonymity and being held accountable for a false tip. See id.; see

also United States v. Romain, 393 F.3d 63, 73 (1st Cir. 2004);

United States v. Christmas, 222 F.3d 141, 144 (4th Cir. 2000);

United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991).

Second, when a tip is made in-person, an officer can observe

the informant’s demeanor and determine whether the informant seems credible enough to justify immediate police

action without further questioning. See, e.g., United States v.

Heard, 367 F.3d 1275, 1279 (11th Cir. 2004); United States

v. Thompson, 234 F.3d 725, 729 (D.C. Cir. 2000); United

States v. Valentine, 232 F.3d 350, 354 (3d Cir. 2000); United

States v. Robertson, 39 F.3d 891, 893 (8th Cir. 1994). 

[4] Here, the UPS driver’s tip featured both of these key

indicia of reliability. The driver risked losing his anonymity

by speaking face-to-face with Agent Simon, who was able to

observe his appearance and affiliation with UPS, and who

could have asked the driver for identification had it seemed

necessary. Moreover, Simon could judge the UPS driver’s

demeanor and evaluate his credibility. 

Other indicia present in this case are also relevant to determining the tip’s reliability. For example, if the unidentified

informant is a member of a small class of likely sources, we

have held that the “tip does provide the lawful basis for some

police action.” United States v. Terry-Crespo, 356 F.3d 1170,

1174 (9th Cir. 2004) (internal quotation marks omitted). In

United States v. Fernandez-Castillo, a Montana Department

1256 UNITED STATES v. PALOS-MARQUEZ
of Transportation (MDOT) employee radioed his dispatcher

“about an older model black Monte Carlo . . . whose driver

was ‘evidently driving quite erratically.’ ” 324 F.3d 1114,

1116 (9th Cir. 2003). The MDOT dispatcher then told the

highway patrol dispatcher that “one of our guys” called in

with the tip about the Monte Carlo. Id. A highway patrol officer subsequently stopped the vehicle and discovered over 500

grams of methamphetamine. Id. at 1116-17. We held that the

tip was reliable because the informant “could be held accountable for fabricating any story” if the officer decided to follow

up and identify him, which was possible given the officer’s

knowledge of the informant’s place of employment. Id. at

1118. Therefore, “the concerns raised by anonymous tips”

that “the tipster cannot be held accountable for fabrications

and the tipster’s reputation cannot be assessed” were “simply

not present” in this context. Id. 

[5] In this case, like in Fernandez-Castillo, the Border

Patrol agent knew that the informant was a UPS driver who

had worked a designated route at a certain time on the day of

Palos-Marquez’s stop. The agent could have reasonably concluded that the UPS driver’s identity could be determined

with only a small amount of investigation. This increases the

reliability of the tip because the informant likely could be held

accountable if the information proved to be false.

Palos-Marquez argues that Sierra-Hernandez and

Fernandez-Castillo are distinguishable because the UPS

driver did not put his anonymity at risk to the same extent as

the informants in those cases. Palos-Marquez asserts that the

Sierra-Hernandez tipster had a “remarkable appearance” in

that he was wearing overalls and a hat, and was driving an

atypical car. In addition, Palos-Marquez claims that unlike the

tipster in Fernandez-Castillo, who was one of a very small

number of MDOT employees, the only information the agent

knew about the UPS driver was that he “works for a company

with 355,000 employees.”

UNITED STATES v. PALOS-MARQUEZ 1257
We disagree. Sierra-Hernandez never described the tipster’s appearance as “remarkable” nor considered whether the

tipster could easily be found for follow-up questioning. See

581 F.2d at 763 (“Here, since the informant was not known

to the officer and cannot be traced, the officer’s testimony

cannot be corroborated.” (emphasis added)). We held that the

tip at issue in Sierra-Hernandez was reliable because the inperson informant risked his anonymity, not because officers

were able to later track down the informant. See id.2 Nor is

Fernandez-Castillo distinguishable. Rather, the UPS driver is

like the informant in Fernandez-Castillo whose association

with an employer known to the agent indicated that his identity “could easily be ascertained by a simple inquiry” and the

informant could be held accountable for providing a false tip.

324 F.3d at 1118. 

There are several other facts present here that weigh in

favor of the tip’s reliability. The UPS driver relayed his tip

near to where he had observed the events, and agents stopped

a pickup fitting the driver’s description within minutes of his

statement. We have held that if an unidentified informant’s tip

is “made contemporaneously with a complainant’s observations” the report is generally more reliable than those made

later in time. Id. at 1119. Furthermore, the UPS driver indicated that he had first-hand knowledge of the crime when he

reported to Agent Simon that he had seen several suspected

illegal aliens load into the pickup. Thus, our observation that

an informant’s tip “is considered more reliable if the informant reveals the basis of knowledge of the tip—how the

informant came to know the information”—applies. United

States v. Rowland, 464 F.3d 899, 908 (9th Cir. 2006) (citation

omitted).

2

In any event, the argument that locating a UPS driver who was driving

a specific route at a certain time on a given day would be more difficult

than finding a man in overalls and a hat who drives a Mercedes Benz runs

contrary to common sense. 

1258 UNITED STATES v. PALOS-MARQUEZ
[6] In sum, the UPS driver’s tip displayed significant indicia of reliability that supported the agents’ formulation of “a

reasonable suspicion that criminal activity was occurring,”

Sierra-Hernandez, 581 F.2d at 762, particularly “in the light

of the surrounding circumstances” discussed below, id. at

764.

B

In addition to the in-person tip, we consider other facts

available to the officers to determine whether “in light of the

totality of the circumstances, the officer had a ‘particularized

and objective basis for suspecting the particular person

stopped of criminal activity.’ ” Berber-Tinoco, 510 F.3d at

1087 (quoting Cortez, 449 U.S. at 417-18). In the context of

border patrol stops, relevant facts include: “(1) characteristics

of the area; (2) proximity to the border; (3) usual patterns of

traffic and time of day; (4) previous alien or drug smuggling

in the area; (5) behavior of the driver, including ‘obvious

attempts to evade officers’; (6) appearance or behavior of passengers; (7) model and appearance of the vehicle; and, (8)

officer experience.” United States v. Garcia-Barron, 116 F.3d

1305, 1307 (9th Cir. 1997) (quoting United States v.

Brignoni-Ponce, 422 U.S. 873, 885 (1975)).

[7] Here, the agents relied on three facts in addition to the

in-person tip to support their reasonable suspicion. First,

Agent Staunton testified that the Otay Lakes Road area is “notorious not only for alien traffic to cross there through this

area, but also load vehicles—people to load up with illegal

aliens.” Second, the pickup was being driven erratically, at a

high rate of speed. Third, the BIC agents observed that the

pickup’s occupants appeared “nervous and shaky.” 

Palos-Marquez argues that each of these factors is insufficient to create reasonable suspicion. According to PalosMarquez, the notoriety of a road as a smuggling corridor generally cannot be a relevant factor in determining whether reaUNITED STATES v. PALOS-MARQUEZ 1259
sonable suspicion exists because “nearly every road in the

Southern District of California is ‘notorious’ for smuggling,”

and roads such as Otay Lakes also carry legitimate traffic.

This argument must fail; the notoriety of a road as an alien

smuggling route has long been held by numerous courts,

including the Supreme Court, as a relevant factor supporting

reasonable suspicion. See, e.g., Brignoni-Ponce, 422 U.S. at

884-85 (listing “the characteristics of the area” and “previous

experience with alien traffic” on the road as factors to consider in deciding whether there is reasonable suspicion to stop

a car); Berber-Tinoco, 510 F.3d at 1088 (finding Lyons Valley Road “notorious” for smuggling); United States v. DiazJuarez, 299 F.3d 1138, 1142 & n.2 (9th Cir. 2002) (finding

that Tierra del Sol Road was a “high-crime area,” which suggested smuggling).

Palos-Marquez next argues that driving too fast for the road

conditions does not support a reasonable suspicion of alien

smuggling. We agree that Palos-Marquez’s traffic infractions

alone do not create a reasonable suspicion of transporting

aliens. See Fernandez-Castillo, 324 F.3d at 1120 (“It is perfectly understandable that swerving within one’s own lane of

traffic would not support reasonable suspicion of smuggling,

which has nothing to do with impairment,” but would support

reasonable suspicion that the driver was impaired.). But here

Agent Staunton stated that based on his experience, the pickup’s erratic driving on Otay Lakes Road, along with the UPS

driver’s gesture, caused him to suspect that the pickup was

smuggling contraband. As we stated in Berber-Tinoco, we

must give due credence to officers who “may make reasonable deductions and inferences based on their experience and

specialized training that might well elude an untrained person.” Berber-Tinoco, 510 F.3d at 1087 (quotation marks omitted). 

Finally, Palos-Marquez argues that the BIC agents’ observation that the pickup’s occupants appeared “nervous and

shaky,” occurred after he had been seized, and therefore can1260 UNITED STATES v. PALOS-MARQUEZ
not be included in the reasonable suspicion analysis. This is

incorrect, as the record indicates that the BIC agents’ observations were made prior to Palos-Marquez’s stop. Accordingly,

these observations provide another relevant consideration in

the reasonable suspicion equation. See Arvizu, 534 U.S. at 276

(holding that passenger conduct can be a factor supporting

reasonable suspicion); Brignoni-Ponce, 422 U.S. at 885 (stating that “the driver’s behavior may be relevant . . . [to] support a reasonable suspicion” that crime is afoot).

[8] We therefore reject Palos-Marquez’s attempt to discredit individually each of the facts used by agents to determine if there was reasonable suspicion to initiate the stop.

Arvizu specifically “prohibits courts from adopting a ‘divideand-conquer analysis’ by looking at each factor in isolation

and according it no weight if it is susceptible to an innocent

explanation.” Berber-Tinoco, 510 F.3d at 1088 (quoting

Arvizu, 534 U.S. at 274). Instead, we must take a holistic

approach, and consider the totality of the circumstances, taking into account all of the facts in light of the others. See

Arvizu, 534 U.S. at 274. Under this test, even if the UPS driver’s in-person tip was not sufficient in itself to give the officers reasonable suspicion, the tip along with the agents’

knowledge that the area is notorious for alien smuggling, that

the pickup was being driven at a high rate of speed, and that

the vehicle’s occupants were visibly nervous, was enough to

support the investigatory stop. 

IV

[9] Today we reaffirm our holding in Sierra-Hernandez

that “[i]nformation from a citizen who confronts an officer in

person to advise that a designated individual . . . is committing a specific crime” displays significant indicia of reliability. 581 F.2d at 763. Because the UPS driver’s in-person tip

had such indicia of reliability, and in light of the notoriety of

the area for alien smuggling, the pickup’s high rate of speed,

and the pickup occupants’ nervous demeanor, there was more

UNITED STATES v. PALOS-MARQUEZ 1261
than enough evidence to “paint a picture that would create in

the mind of a trained border patrol agent a reasonable suspicion that the [vehicle’s occupants were] engaged in criminal

activity.” United States v. Guzman-Padilla, 573 F.3d 865, 882

(9th Cir. 2009) (quotation and citation omitted). Therefore,

the officers’ investigatory stop of the vehicle driven by PalosMarquez did not violate the Fourth Amendment.

AFFIRMED.

1262 UNITED STATES v. PALOS-MARQUEZ