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USA v. Varela, No. 11-10448 (9th Cir. unpub. 9-17-2012)


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USA v. Varela, No. 11-10448 (9th Cir. unpub. 9-17-2012)

  1. 1. FILED NOT FOR PUBLICATION SEP 17 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUITUNITED STATES OF AMERICA, No. 11-10448 Plaintiff - Appellee, D.C. No. 4:10-cr-00908-DCB- GEE-1 v.MARIO HUMBERTO VARELA, MEMORANDUM * Defendant - Appellant. Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Submitted September 12, 2012 ** Las Vegas, NevadaBefore: RAWLINSON, BYBEE, and IKUTA, Circuit Judges. * This disposition is not appropriate for publication and is not precedentexcept as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decisionwithout oral argument. See Fed. R. App. P. 34(a)(2). 1
  2. 2. Varela appeals the district court’s denial of his motion to suppress evidencethat he contends was obtained during an unconstitutional investigative stop. Weaffirm. The district court did not clearly err in concluding that Sifuentes’s testimonywas credible. Contrary to Varela’s arguments, Sifuentes’s testimony wasconsistent with his initial report, albeit more detailed. In light of his credible testimony, Sifuentes had reasonable suspicion to stopthe car driven by Varela, taking into account the totality of the circumstances,which included the following facts: (1) Sifuentes was positioned in a remote areafrequented by drug smugglers, and was within fifteen miles of the border; (2) asensor alarm indicated that drug smugglers might be present in Sifuentes’s area;(3) Sifuentes determined, in light of “officer experience,” United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997), that a tip from the driver of a ChevyBlazer was a ruse intended to cause Sifuentes to leave the area so he would not seeVarela’s vehicle; and (4) Sifuentes determined, again in light of “officerexperience,” id., that tape-wrapped bundles in the car driven by Varela were bricksof marijuana. See United States v. Arvizu, 534 U.S. 266, 269–70, 273, 277 (2002). We reject Varela’s argument that the district court’s reliance on certainfactors (such as Varela’s failure to acknowledge Sifuentes, and Varela’s orange 2
  3. 3. hunting cap) was impermissible. The Supreme Court has prohibited courts “fromadopting a ‘divide-and-conquer analysis’ by looking at each factor in isolation andaccording it no weight if it is susceptible to an innocent explanation.” United Statesv. Berber-Tinoco, 510 F.3d 1083, 1088 (9th Cir. 2007) (quoting Arvizu, 534 U.S. at274). And in any event, the remaining factors supported a determination thatSifuentes had reasonable suspicion.AFFIRMED.United States v. Arvizu, 534 U.S. 266 (2002), is a case in which the Supreme Court ofthe United States unanimously reaffirmed the proposition that the Fourth Amendmentrequired courts to analyze the reasonableness of a traffic stop based on the totality of thecircumstances instead of examining the plausibility of each reason an officer gives forstopping a motorist individually. Ninth Circuit screwed up by NOT performing correct de novo review based on thetotality. It tried (as it so frequently does) to "divide and conquer" the truth by removing thefacts from reality as it often does. The Supreme Court overruled and chastised AGAIN! 3