KEVIN R. SWEAZEA, Magistrate Judge.
Mr. Rivero was arrested on May 2, 2017 and charged with a violation of 8 U.S.C. §1324(a)(1)(A)(v)(I), Conspiracy to Transport Illegal Aliens. On May 4, 2017, Mr. Rivero appeared for initial appearance and, on May 5, 2017, he waived his preliminary hearing. This matter went before the Grand Jury and Mr. Rivero was indicted on July 19, 2017, on one count of Conspiracy to Transport Illegal Aliens, in violation of 8 U.S.C. §1324(a)(1)(A)(v)(I), and one count of Transporting Illegal Aliens and Aiding and Abetting, in violation of 8 U.S.C. §1324(a)(1)(A)(ii), (a)(1)(b)(ii). [Doc. 25]. Mr. Rivero filed the Motion on July 28, 2017. [Doc. 31]. The United States filed its response to the Motion on August 11, 2017. [Doc. 34]. Mr. Rivero did not file a reply. On August 21, 2017, a hearing on the Motion was set for September 14, 2017, before United States District Judge Kenneth J. Gonzales. [Doc. 35]. On August 23, 2017, Judge Gonzales ordered that the hearing be vacated[Doc. 36], and he referred the Motion to the undersigned to conduct hearings, if warranted, and to perform any legal analysis required to recommend an ultimate disposition. [Doc. 37].
An evidentiary hearing was held on September 27, 2017, at which counsel for both parties, along with Mr. Rivero, were present. Both the Government and counsel for Mr. Rivero presented evidence and oral argument concerning the Motion.
Mr. Rivero challenges the roving patrol stop of his vehicle by United States Border Patrol Agent Edgar Tagle ("Agent Tagle") on New Mexico State Road 9 ("State Road 9") in Luna County, New Mexico on May 2, 2017 at approximately 4:30 p.m. Mr. Rivero asserts that Agent Tagle did not have a reasonable suspicion to believe that Mr. Rivero was transporting undocumented immigrants or any other contraband, and so was not justified in making the stop. Mr. Rivero urges the Court to suppress all evidence generated from the stop.
In connection with his argument that evidence gained by the Government as a result of the stop should be suppressed, Mr. Rivero challenges much of the evidence upon which the Government relies in support of the stop. Mr. Rivero contends that the fact that he was driving on State Road 9 is entitled to little, if any, weight. Mr. Rivero argues that the fact that his vehicle was registered at an address in Las Cruces, Dona Ana County, New Mexico adds nothing to the reasonable suspicion analysis. Mr. Rivero further contends that since his vehicle was registered in Las Cruces, Dona Ana County, New Mexico, and he was driving in adjacent Luna County on a road that traverses both counties when he was stopped, the fact that he was driving his vehicle in a westerly direction on State Road 9 between the New Mexico communities of Santa Teresa and Columbus is entitled to no weight at all. Mr. Rivero further argues that Agent Tagle's premise that Mr. Rivero was driving on State Road 9 for the purpose of avoiding a fixed checkpoint located on Interstate 10 west of Las Cruces is a hunch, unsupported by evidence. Mr. Rivero also argues that the fact that he did not look at or waive to Agent Tagle when passing the agent's vehicle, and the fact that Agent Javier Murillo, the first United States Border Patrol Agent who saw Mr. Rivero's vehicle, saw only one person in the vehicle while Agent Tagle saw two people, add nothing to the analysis. [Doc. 31].
The Government counters Mr. Rivero's argument by contending that based upon the totality of the circumstances and a consideration of the factors enunciated in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), Agent Tagle clearly had reasonable suspicion to stop Mr. Rivero's vehicle to further investigate the agent's suspicions. First, in addressing the Brignoni-Ponce factors, the Government states that State Road 9 originates in Santa Teresa, New Mexico and runs west along the U.S./Mexico border through a sparsely populated area of New Mexico to the Village of Columbus, New Mexico, and that State Road 9 is known to Border Patrol Agents as a smuggling route. Next, the Government points out the close proximity to the U.S./Mexico border where the stop was made. Next, the Government addresses the normal traffic patterns in the area where the stop occurred, and points out that traffic tends to be local. In addition, the Government contends that Mr. Rivero's automobile was unusually clean when compared with local traffic. Next, the Government contends that Agent Tagle learned that Mr. Rivero's vehicle was registered to an individual with a Las Cruces address, raising further suspicion.
Next, the Government addressed the previous experience Agents Murillo, Velarde, and Tagle have had with illegal alien traffic. The Government points out that Mr. Rivero's vehicle was traversing State Road 9 around the time of the agents' shift change. In connection with information that the Border Patrol Agents might have concerning illegal border crossings in the area, the Government then points out that alien smuggling is a constant and common occurrence along State Road 9, and that many of the vehicles operated by the alien smugglers apprehended on or near State Road 9 are registered to Las Cruces, New Mexico addresses.
The Government then addresses Mr. Rivero's behavior as the driver of his vehicle, and makes several contentions. First, the Government contends that the first United States Border Patrol Agent to encounter Mr. Rivero's vehicle on the date and at the time in question was Agent Murillo. The Government explains that Mr. Rivero was driving in a westerly direction along State Road 9 when he encountered Agent Murillo's marked Border Patrol Unit parked near mile marker 104. Agent Murillo noticed that Mr. Rivero applied his brakes in an erratic manner, appeared extremely stiff at the wheel of his vehicle and did not acknowledge Agent Murillo when he drove past Agent Murillo's vehicle. The Government also contends that Agent Tagle considered Mr. Rivero's origination point to be Las Cruces, Mr. Rivero's immediate destination to be Columbus, New Mexico, and considered it suspicious that Mr. Rivero would choose to take the much longer route from Las Cruces, to Santa Teresa, New Mexico, and then west along State Road 9 to Columbus, rather than the shorter route on a far superior road west from Las Cruces on Interstate 10 to Deming, New Mexico, and then south to Columbus. The Government also points out that there is a United States Border Patrol check-point on Interstate 10 west of Las Cruces, and that the State Road 9 route being driven by Mr. Rivero permitted him to avoid that check point in his westerly travel from Las Cruces. Finally, the Government contends that alien smugglers often use high capacity vehicles to transport illegal aliens, and that the agents considered Mr. Rivero's blue Dodge sport utility vehicle (the "SUV") to be a high capacity vehicle.
In addition to the contentions referenced above addressing the Brignoni-Ponce factors, the Government makes an additional factual contention, and argues that a totality of the circumstances demonstrates that Agent Tagle had a reasonable suspicion to believe that Mr. Rivero was engaged in illegal activity. The Government points out that when Agent Murillo saw Mr. Rivero's vehicle traveling west on State Road 9 at mile marker 104, there was only one person observable in the vehicle. Next, when Mr. Rivero's vehicle encountered Agent Tagle further west on State Road 9 at mile marker 96, there were at least two people observable in Mr. Rivero's vehicle. Based upon that information, the Government contends that the Border Patrol Agents thought that either the passenger in Mr. Rivero's vehicle had been hiding from view when passing Agent Murillo at mile marker 104, or that Mr. Rivero had stopped and picked a person up along State Road 9 between mile marker 104 and mile marker 96.
On September 27, 2017, the Court held an evidentiary hearing. The Government called three witnesses (Border Patrol Agents Javier Murillo, Luis Velarde and Edgar Tagle) to testify and introduced four exhibits. [See Doc. 45]. Mr. Rivero called private investigator Gilbert Nieto to testify and introduced one exhibit. See id. The Court proposes the following factual findings be made based on the testimony of the four witnesses who testified and the exhibits that were introduced. Because no finalized transcript has been prepared, the Court does not cite to one. Unless more specifically explained herein, the Court has resolved any disputes in the testimony consistent with the following findings.
The Fourth Amendment protects citizens from unreasonable searches and seizures by the government. U.S. Const. amend. IV. This protection extends to brief investigatory stops of persons or vehicles that fall short of traditional arrest. United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). "[T]he Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot." Id. (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).
Consistent with the Fourth Amendment's prohibition against unreasonable searches and seizures, "Border Patrol agents `on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion' that those vehicles' occupants may be involved in criminal activity." United States v. Cantu, 87 F.3d 1118, 1121 (10th Cir. 1996) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)). Reasonable suspicion does "not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274 (2002), overruled in part on other grounds by Davis v. Washington, 547 U.S. 813 (2006). Rather, "reasonable suspicion represents a `minimum level of objective justification.'" United States v. Mendez, 118 F.3d 1426, 1431 (10thCir. 1997) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). In evaluating the constitutionality of a roving patrol stop, a court must consider the totality of the circumstances "from the perspective of the reasonable officer, not the reasonable person." United States v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir. 2003) (emphasis in original). "Officers must be permitted `to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.'" Id. (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)).
In United States v. Brignoni-Ponce, the Supreme Court explained that any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. 422 U.S. at 884. The Supreme Court provided a non-exhaustive list of circumstances that may give rise to reasonable suspicion:
United States v. Monsisvais, 907 F.2d 987, 990 (citing Brignoni-Ponce, 422 U.S. at 884-85). When evaluating an officer's decision to stop a vehicle, a court may not engage in a "sort of divide-and-conquer analysis" by evaluating and rejecting each factor in isolation. Arvizu, 534 U.S. at 274; United States v. Gandara-Salinas, 327 F.3d 1127, 1130 (10th Cir. 2003). This is because factors that by themselves may be "consistent with innocent travel" may collectively amount to reasonable suspicion. Arvizu, 534 U.S. at 274-75 (quoting Sokolow, 490 U.S. at 9). Rather, "the totality of the circumstances-the whole picture-must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). "In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling." Brignoni-Ponce, 422 U.S. at 885.
In situations where law enforcement officers are working together on an investigation, a court should evaluate whether their collective knowledge satisfied the appropriate legal standard, whether it be reasonable suspicion or probable cause. See United States v. Chavez, 534 F.3d 1338, 1345-48 (10th Cir. 2008) (citing United States v. Zamudio-Carrillo, 499 F.3d 1206 (10th Cir. 2007)); see also United States v. Wilkinson, 633 F.3d 938, 941-43 (10th Cir. 2011). Under the "collective knowledge" doctrine, sometimes referred to as the "fellow officer rule" or "police team concept," an officer who stops a vehicle need not himself be in possession of every fact necessary to a finding of reasonable suspicion or probable cause so long as some officer in that particular police team has possession of the necessary facts. See Chavez, 534 F.3d at 1345-48.
The first Brignoni-Ponce factor to be considered in connection with the evaluation of whether Agent Tagle had a reasonable suspicion that the driver of the SUV, who turned out to be Mr. Rivero, was engaged in criminal activity is the characteristics of the area where the traffic stop occurred. Id. at 884-885. State Road 9 is a paved two lane highway, located north of and near the U.S./Mexico border. State Road 9 provides an east-west route of travel from Santa Teresa to New Mexico Highway 80 which is located near the western New Mexico border. The traffic on State Road 9 is light. The area along State Road 9 where Mr. Rivero was observed driving the SUV and where the traffic stop occurred is native desert rangeland. Barbed wire fencing runs along either side of the road. There are no residences, businesses, schools, buildings or structures of any kind near the road anywhere between where Agent Murillo saw the SUV and where Agent Tagle encountered the SUV. The area is isolated and sparsely populated. There are no permanent United States Border Patrol inspection stations located on State Road 9. Additionally, the area of State Road 9 where the traffic stop occurred is frequently used by illegal alien smugglers as a route to retrieve and transport illegal aliens. The characteristics of the area are known to each of the agents, and factored into the agents' suspicion of the SUV and its driver. The characteristics of the area support the agents' suspicions that the driver of the SUV might be involved in criminal activity.
The second Brignoni-Ponce factor is the proximity of the area to the border. Id. Agent Tagle was aware that State Road 9 parallels the United States/Mexico International Border from Santa Teresa, to Columbus. Agent Tagle also knows that State Road 9 is approximately two miles north of the Mexican border in the area between mile markers 104 and 96. The Court recognizes that highways near the border will carry law abiding travelers as well as those involved in criminal activity. However, "proximity to the border may be considered as a factor in the reasonable suspicion calculus." United States v. Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir. 2002). The area is isolated, sparsely populated cattle ranching country with no residences, businesses, schools, buildings, or other structures situated near State Road 9. State Road 9 is located very close to the U.S./Mexico border. The character of the area and proximity of State Road 9 to the border lends itself to use of State Road 9 by people retrieving and transporting illegal aliens. The close proximity to the border was appropriately considered by Agent Tagle in his assessment that the driver of the SUV might be involved in criminal activity. See Hernandez-Lopez, 761 F. Supp. 2d at 1195 ("The Tenth Circuit has . . . [provided] a rough guide of fifty miles as being sufficiently close to support reasonable suspicion.").
The third Brignoni-Ponce factor is the usual patterns of traffic on the particular road. State Road 9 is lightly traveled. Most of the vehicular traffic in the area tends to be local residents and ranchers. Agent Murillo noted that the SUV was unusually clean, unlike the local vehicles in the area, which are often dirty and dusty from driving on dirt roads. Agent Murillo did not recognize the SUV as a local vehicle. Agent Tagle learned that the SUV was registered to a Las Cruces address, so the agent knew the vehicle was not a local vehicle. State Road 9 where the traffic stop occurred is not the normal path of westbound vehicular traffic originating in Las Cruces. Most of the east/west vehicular traffic in southern New Mexico is on Interstate 10 between Las Cruces and the western border of New Mexico. Hence, the agents thought it unusual for a traveler, such as Mr. Rivero, to have begun driving in Las Cruces, intent on traveling to some point west of Las Cruces, and to have routed himself so that he was traveling west on State Road 9 towards Columbus. The local patterns of traffic, when contrasted with the rational inferences Agent Tagle drew about Mr. Rivero's actions on the date and time in question, further support Agent Tagle's supposition that he had reasonable suspicion that the driver of the SUV was engaging in criminal activity when the agent conducted the traffic stop of the SUV.
The fourth Brignoni-Ponce factor addresses the previous experience of the agents with alien traffic. Id. At the time of the arrest, Agents Murillo and Tagle had each been United States Border Patrol Agents for nine years. Agent Murillo has been at the Deming Border Patrol Station for two years. Agent Murillo had been assigned to the Lordsburg, New Mexico Border Patrol Station, 55 miles west of Deming, for seven years before transferring to the Deming Border Patrol Station. Agent Tagle has been at the Deming Border Patrol Station for the entirety of his career as an agent covering the geographical area at issue. See Barron-Cabrera, 119 F.3d at 1461 (finding that an officer's three and a half years of experience as a border patrol agent in the area satisfied the fourth prong of Brignoni-Ponce). Agent Murillo and Agent Tagle both have extensive experience detecting and interdicting illegal alien smuggling in the geographic area where the traffic stop occurred.
The fifth Brignoni-Ponce factor addresses the information the agents might have had concerning recent border crossings in the area. Id. The agents involved in observing and conducting the traffic stop of the SUV were aware that State Road 9 parallels the United States / Mexico International Border from Santa Teresa to Columbus. In addition, the agents knew that State Road 9 is notorious for being used by smugglers to retrieve and transport illegal aliens and narcotics, and that State Road 9 is never more than approximately two miles north of the Mexican border between mile markers 104 and 96.
The agents were also aware of recent trends in illegal alien smuggling schemes implemented in the area. Recent trends with illegal alien smuggling there have involved vehicles with registered owners having addresses in Las Cruces, as did the SUV driven by Mr. Rivero. In addition, recent trends there have involved illegal aliens walking over the U.S./Mexico border and walking north to State Road 9 in the area between mile marker 96 and mile marker 104, to be retrieved by illegal alien smugglers in vehicles. When Agent Tagle saw a passenger in the SUV, where Agent Murillo had seen only the driver minutes earlier, Agent Tagle's suspicions were increased. Agent Tagle drew the rational inference that the SUV passenger might have either been attempting to avoid being seen by Agent Murillo when the SUV went past Agent Murillo's vehicle, or that the passenger had walked north over the U.S./Mexico border and had been retrieved by the SUV driver somewhere between mile marker 104 and mile marker 96.
The sixth Brignoni-Ponce factor evaluates the driver's behavior, including any obvious attempts to evade officers. Id. at 885. Agent Murillo, who was sitting in his marked Border Patrol Unit near mile marker 104, observed that the driver of the SUV applied the vehicle's brakes very forcefully as it approached his location, to the extent that Agent Murillo could see the front end of the SUV dip closer to the roadway surface. Agent Murillo observed that when the SUV passed the location where Agent Murillo's vehicle was parked, the driver appeared very stiff at the steering wheel. Agent Murillo also observed that the driver of the SUV did not look at, waive to, or otherwise acknowledge seeing Agent Murillo
Agent Murillo rationally inferred from Mr. Rivero's forceful application of the SUV's brakes that Mr. Rivero was concerned or alarmed with the presence of a United States Border Patrol Agent. Agent Murillo rationally inferred from Mr. Rivero's conduct of not looking at or acknowledging the presence of the agent on the remote, isolated road, and by looking straight ahead and appearing very stiff while driving, that Mr. Rivero was tense, uneasy, or concerned by the presence of the agent and that he was not from the local area. See Arvizu, 534 U.S. at 275-76 (noting that driver's slowing down, stiffening of posture, and failure to acknowledge sighted law enforcement officer may be unusual on remote road).
Agent Velarde, along with Agent Tagle, had stationed their marked Border Patrol Units near mile marker 96 about eight miles west of mile marker 104 on New Mexico State Road 9. The agents were sitting in their marked Border Patrol Vehicles with the driver's doors facing each other, talking. Agent Velarde's vehicle was pointing west and Agent Tagle's vehicle was pointing east. Agent Murillo knew that Agent Velarde and Agent Tagle were then positioned to the west of him on State Road 9, near mile marker 96. Agent Murillo advised Agent Velarde via cellular telephone of his observations.
Agent Velarde relayed to Agent Tagle what Agent Murillo had just told Agent Velarde during the telephone call. Agent Tagle, upon hearing the information relayed by Agent Murillo to Agent Velarde involving the SUV, positioned his vehicle just off and parallel to New Mexico State Road 9 at mile marker 96 facing the east, to watch the westbound vehicular traffic approach his location. Agent Tagle was suspicious about the SUV and its driver based upon the information provided by Agent Murillo to Agent Velarde.
Before the SUV approached Agent Tagle's position, the agents suspected that the SUV was not a local vehicle. After the SUV passed Agent Tagle and the agent was following the SUV to the west on State Road 9, the agent ran the SUV's plates and learned that the SUV was registered to Mr. Rivero at a Las Cruces address. Accordingly, Agent Tagle knew that the SUV was not a local vehicle and drew the rational inference that the trip for the SUV driver had originated in Las Cruces. Agent Tagle was suspicious of the route chosen by the SUV driver. The most direct route of vehicle travel from Las Cruces to Columbus, or some other point located west of Las Cruces, would be to drive directly to the west from Las Cruces on Interstate 10, rather than driving south from Las Cruces to Santa Teresa,
The agents also knew that westbound vehicles traveling on Interstate 10 from Las Cruces are subject to inspection at the United States Border Patrol permanent Immigration Checkpoint located on Interstate 10 near mile marker 120. State Road 9, on the other hand, does not have a permanent Immigration Checkpoint, nor is there a permanent Immigration Checkpoint located between Las Cruces and Santa Teresa. Vehicular travel on State Road 9 from Santa Teresa traveling west to or through Columbus, with an origination point of Las Cruces, permits the vehicle to circumvent the Interstate 10 Immigration Checkpoint. The possibility that the SUV was traveling on State Road 9 in a westerly direction, rather than traveling west on Interstate 10, in order to avoid the permanent Immigration Checkpoint on Interstate 10 was a deduction made by the agents, and factored into Agent Tagle's decision to stop the SUV.
Since Agent Tagle inferred that the SUV's route originated in Las Cruces, the agent also surmised that if the destination for the SUV was somewhere to the west of Las Cruces other than Columbus, then Mr. Rivero's choice of routes was even more suspicious because of the circuitous nature of the route and the additional mileage and travel time that the chosen route would have added to Mr. Rivero's travel. Regardless of whether Mr. Rivero's destination was Columbus, or some other destination west of Las Cruces, the agent's suspicions were heightened because Mr. Rivero's choice of route permitted him to avoid passing through a permanent Immigration Checkpoint. Agent Tagle and the other agents reasonably considered the direction of travel and route of travel of the SUV as factors in evaluating whether the driver of the SUV might be involved in an illegal alien smuggling scheme.
The seventh Brignoni-Ponce factor evaluates aspects of the vehicle involved in the traffic stop that might bear upon reasonable suspicion that the driver was engaged in illegal conduct. Id. Agents Murillo and Tagle were aware that illegal alien smugglers often utilize "high capacity vehicles" capable of transporting numerous individuals. Agents Murillo and Tagle considered the SUV to be a high capacity vehicle, lending to their suspicion that the driver of the SUV might be engaged in illegal alien smuggling. Agent Murillo also noticed that the SUV was unusually clean compared to local vehicles, and suspected that the SUV was not a local vehicle.
The eighth Brignoni-Ponce factor enumerated by the Supreme Court is whether the vehicle appears to be heavily loaded. No evidence was introduced concerning whether the SUV appeared to be heavily loaded.
In Brignoni-Ponce, the Supreme Court explained that any number of factors, in addition to those factors specifically enumerated in the opinion, may be taken into account in deciding whether there is reasonable suspicion to conduct a traffic stop of a car in the border area. 422 U.S. at 884. When the SUV passed by Agent Murillo at mile marker 104, he could only see one occupant in the SUV: the driver. When the SUV approached Agent Tagle a few minutes later and approximately eight miles further west along State Road 9, Agent Tagle, with the aid of his binoculars, could see the driver of the SUV and a front seat passenger. Seeing at least two people in the SUV instead of one increased Agent Tagle's suspicion that the driver of the SUV was involved in an illegal alien smuggling scheme. Agent Tagle suspected that the SUV passenger he saw might be an illegal alien. Agent Tagle drew the rational inference that the SUV passenger not seen by Agent Murillo had either been bent over to avoid being seen by Agent Murillo, or had been picked up along State Road 9 between the location where Agent Murillo saw the SUV and the location where Agent Tagle encountered the SUV. Either inference added to the agent's reasonable suspicion that Mr. Rivero was engaged in illegal activity at the time Agent Tagle initiated the traffic stop of the SUV.
Mr. Rivero notes many of the facts relied upon by the Government and attempts to discount those facts by discussing them in isolation and pointing out innocent explanations for each. For example, Mr. Rivero attempts to dismiss the sighting of the passenger in the front seat of the SUV by Agent Tagle as insignificant, arguing that Agent Murillo might have simply missed seeing the SUV passenger, or that the passenger might have been bending down for an innocent reason when the SUV passed Agent Murillo. Similarly, Mr. Rivero argues that there are plausible, legitimate reasons that he might have been driving on State Road 9 when he was stopped by Agent Tagle. "A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct." United States v. Arvizu at 277 (citing Illinois v. Wardlow, 528 U.S. 119, 125 (2000)). The agents appropriately drew on their experience and specialized training and made inferences from and deductions about the cumulative information available to them. United States v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir. 2003).
Evaluated in isolation and in a vacuum, each of the individual facts relied upon by Agent Tagle in determining that he had a reasonable suspicion to believe that the driver of the SUV was involved in criminal activity might be insufficient. However, while "any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel . . . taken together they amount to reasonable suspicion." Quintana-Garcia, 343 F.3d at 1274 (internal quotations omitted).
The Government bears the burden to prove by a preponderance of the evidence that the vehicle stop was grounded in a reasonable and articulable suspicion that illegal activity was afoot. See, e.g., United States v. Burciaga, 687 F.3d 1229, 1230 (10th Cir. 2012) (citing United States v. Kitchell, 653 F.3d 1206, 1216 (10th Cir. 2011)). The facts known by Agent Tagle, as proven by the Government by a preponderance of the evidence during the hearing, together with the rational inferences the agents drew from those facts, demonstrate that Agent Tagle had a reasonable and articulable suspicion that criminal activity was afoot. Therefore, under the totality of the circumstances, Agent Tagle's stop of the SUV was supported by reasonable suspicion.
