UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. OSCAR BETANCES, Defendant - Appellant. No. 15-2106 (D.C. No. 2:14-CR-03432-RB-2) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, HARTZ and MORITZ , Circuit Judges.

________________ _________________ Oscar Betances appeals the district court’s denial of his motion to suppress incriminating statements and evidence that law enforcement obtained during a traffic stop. Because a reasonable suspici on justified the stop, we affirm.
B ACKGROUND Betances entered the Unite d States at the Antelope Wells border crossing in the Bootheel region of New Mexico. There, border patrol agents searched his blue convertible Chrysler Sebring—a vehicle uncommon in the Bootheel region—checked its registration, and ran Betances’ criminal history. The agents ultimately allowed

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value. See Fed. R. App. P. 32 .1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 26, 2016
Elisabeth A. Shumaker Clerk of Court2 Betances to enter the United States. But they notified othe r agents in the area that they were suspicious of Beta nces given his travel route and his criminal history of drug possession. Betances traveled north from Antel ope Wells on Highway 81, a well-known drug trafficking route. Anticipating Betances ’ likely movements, Border Patrol Agent Julian Rodriguez positioned his vehicle at the intersection of Interstate 10 and Highway 146. However, when agents tailing Betances radioed Rodriguez and informed him that Betances had turned west on Highway 9 before heading north again on Highway 113, Rodriguez repositioned himself at the inte rsection of I-10 and Highway 113. Rodriguez waited at the inte rsection for Betances, parking his vehicle on the side of the road, about ten feet away from where Betances’ vehicle would
pass. As Betances approached the intersection, he slowed his vehicle to 10-20 miles per hour and passed Rodriguez while staring straight ahead and keeping both hands on the steering wheel. Rodriguez thought th is behavior was odd, testifying that drivers in the Bootheel region typically tu rn their heads to look at him when they
pass. But Betances’ behavior wasn’t the onl y thing that struck Rodriguez as suspicious. As Betances pass ed, Rodriguez also observed “a large, dark and squarelooking object” with “something colorful on top” in Betances’ backseat. R. vol. 3, 15-16. Rodriguez immediately believed the object was a marijuana bundle with3 colorful straps—one of “easily over a thous and” such bundles Rodriguez has seen during his six years as a border patrol agent. Id. at 16. Rodriguez explained that one to two times a week his border patrol station apprehends smugglers who bring marijuana into the United St ates by backpacking bundle s of marijuana across the border and leaving them near highways in south New Mexico —including Highway 81—so that someone in a vehicle can later retrieve them and tr ansport them north. Rodriguez found it significant that the bundl e in Betances’ vehicle had “something colorful on top” because bright colors ar e “consistent with th e straps that [drug smugglers] use on the burlap bundles.” Id. Rodriguez grew even more suspicious when Betances turned east on I-10 just minutes after turning to travel west on High way 9. Rodriguez explained that there is a more direct route to eastbound I-10 than the one Betances took—namely, continuing north on Highway 146 from Highw ay 81. Instead, by traveling west on Highway 9 and north on Highwa y 113, only to ultimately turn east again on I-10, Betances added about 30 miles of unnecessary travel to his route. Rodriguez further testified that just the week before, authorities had suc cessfully intercepted a drugtrafficking operation at a ch eckpoint along Highway 146. Thus, Rodriguez suspected that Betances’ circuitous r oute may have been an attemp t to avoid Highway 146 (and a potential drug checkpoi nt) altogether. Rodriguez followed and ultimately st opped Betances. During his ensuing search of the vehicle, Rodriguez discovere d 72.12 kilograms of marijuana in what4 turned out to be a black burlap bundle w ith yellow and white st raps sitting in the backseat. Rodriguez asked Beta nces about the bundle, and Be tances admitted that he picked it up along Highway 81 after crossing the border. After the government charged Betances with various marijuana-related offenses, Betances moved to suppress the marijuana and his statement, alleging the stop violated his Fourth Amendment rights. Following an eviden tiary hearing, the district court denied Be tances’ motion, concluding that Rodriguez reasonably suspected Betances of involvement in drug trafficking. Be tances entered a conditional guilty plea and later appealed the district court’s deni al of his motion to
suppress. D ISCUSSION Betances argues that the di strict court erred in denyi ng his motion to suppress because the vehicle stop violated his Four th Amendment rights. When reviewing a district court’s denial of a motion to suppress, we review the court’s factual findings for clear error—viewing the evidence in a light most favorable to the government— and review the court’s ultimate determinat ion of the search’s reasonableness de novo. United States v. Garcia , 751 F.3d 1139, 1142 (10th Cir. 2014). An officer’s investigatory stop of a vehi cle satisfies the F ourth Amendment “if the officer’s action is supp orted by reasonable suspicion to believe that criminal activity ‘may be afoot.’” United States v. Arvizu , 534 U.S. 266, 273 (2002) (quoting United States v. Sokolow , 490 U.S. 1, 7 (1989)). In de termining whether reasonable5 suspicions exists, we ask whether—under the totality of the circumstances—there exists “a particularized and objective ba sis for suspecting the particular person stopped of criminal activity.” Navarette v. California , 134 S. Ct. 1683, 1687 (2014) (quoting United States v. Cortez , 449 U.S. 411, 417-18 (1981 )). This totality-of-thecircumstances approach “al lows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘m ight well elude an untrained person.’” Arvizu , 534 U.S. at 273 (quoting Cortez , 449 U.S. at 417-18). Fi nally, although reasonable suspicion requires more than a mere hunch, “the likelihood of cr iminal activity need not rise to the level required for probable cause, and it falls cons iderably short of satisfying a preponderance of the evidence standard.” Id. at 274. Here, the record establishe s that the Bootheel regi on is well-known for drug trafficking—particularly tr afficking involving black, burlap bundles with brightly colored straps. Rodriguez has observed “e asily over a thousand” of these bundles during his six years as a border patrol agent. R. vol. 3, 16. And he observed just such a bundle in the backseat of Betances’ vehi cle from a distance of approximately 10 feet, all while Betances stared straight ahead and kept both hands on the wheel. Moreover, Betances had just taken a circ uitous route that a dded approximately 30 miles to his trip and conspicuously avoide d the site of a recen t drug checkpoint. Viewed together, these factors gave rise to a reasonable suspicion that Betances was involved in dr ug trafficking. In this re gard, the Supreme Court’s6 analysis in Arvizu is particularly instructive. In Arvizu , the Court concluded that a border patrol agent reasonably suspected th e defendant of illegal activity where: (1) the defendant’s route suggested he wa s trying to circumvent a drug checkpoint; (2) the defendant slowed his vehicle wh en passing a border patrol agent; (3) the defendant avoided eye contact and maintained a stiff postu re as he passed the agent; (4) the backseat occupants appeared to be propping their feet on something large; (5) the backseat occupants wa ived at the agent in an a bnormal, mechanical fashion; (6) the agent didn’t “recognize the [defendant’s ] minivan as part of the local traffic” that agents typically encountered on patr ol in the portion of rural southeastern Arizona where the stop occurred; and (7) the vehicle was registered to an address in an area notorious for alie n and drug smuggling. 554 U.S. at 269-71, 275-78. Many of the factors that gave ri se to reasonable suspicion in Arvizu are also present here: Betances circu itously avoided the location of a recent drug checkpoint; he stared straight ahead a nd kept both hands on the wheel as he passed Rodriguez; and he drove a vehicle not normally encounter ed in the Bootheel region. If anything, the facts in this case are even more compelling than those in Arvizu ; unlike the agent
in Arvizu —who merely observed that the backs eat occupants’ “fee t were propped up on some cargo on the floor,” id. at 270—Rodriguez actually observed a large bundle with brightly colored straps, consistent w ith the marijuana bundles that border patrol agents in the Bootheel region encounter on a weekly basis. If the officer in Arvizu reasonably suspected illegal ac tivity, even absent witnessing anything he believed to7 be contraband, then the tota lity of the circumstances he re certainly gave rise to reasonable suspicion that Be tances was engaged in illega l trafficking, justifying Rodriguez’s investigatory stop. 1 Because Rodriguez’s traffic stop didn’ t violate Betances’ Fourth Amendment rights, we affirm.

Entered for the Court
Nancy L. Moritz Circuit Judge

1 Betances also argues that to establis h reasonable suspici on, an agent must

“ articulate the particular crime ” in which the agent believe s the suspect is involved. Aplt. Br. 6. According to Betances, Rodr iguez didn’t do so here. Thus, Betances concludes, Rodriguez lacked reasonable su spicion to stop Betances’ vehicle. In support, Betances highlight s portions of Rodriguez’s testimony indicating that when he first observed the object in Betances’ ba ckseat, he “couldn’t te ll” if it was a burlap bundle and “did not know” if it was contraba nd. R. vol. 3, 16, 47. But Betances quotes portions of the transc ript out of context and omits key parts of Rodriguez’s testimony. For example, Betances fails to mention that when Rodriguez was asked what went through his mind when he in itially saw the object in the backseat, Rodriguez immediately answer ed, “Narcotics.” R. vol. 3, 15. Betances also omits Rodriguez’s testimony that he was 70-80 percent sure that the bundle contained narcotics. Thus, even if we assume, as Beta nces urges, that an agent must articulate suspicion of a particular cr ime, Rodriguez did so here.