MEMORANDUM**

Alejandro Beltran-Delgado appeals his conviction, following a conditional guilty plea, for possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). Beltran-Delgado contends that the district court erred by denying his motion to suppress evidence seized following an allegedly illegal stop of Beltran-Delgado's vehicle by an agent of the United States Border Patrol. We have jurisdiction under 28 U.S.C. Sec. 1291 and we reverse and remand.

We review de novo whether there was a founded suspicion to justify an investigatory stop. United States v. Sanchez-Vargas, 878 F.2d 1163, 1166 (9th Cir.1989); United States v. Robert L., 874 F.2d 701, 703 (9th Cir.1989).

Founded suspicion to make a brief investigatory stop of a vehicle in a border area exists where an officer is "aware of specific articulable facts, [taken] together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country."

Sanchez-Vargas, 878 F.2d at 1166 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975)). "In evaluating the validity of a stop ..., we must consider 'the totality of the circumstances--the whole picture.' " United States v. Sokolow, 490 U.S. 1, 8 (1989) (quoting United States v. Cortez, 449 U.S. 411 (1981)); see also United States v. Hernandez-Alvarado, 891 F.2d 1414, 1419 (9th Cir.1989) (same).

A Border Patrol officer may draw upon his professional experience when evaluating the facts prior to initiating the investigatory stop. Sanchez-Vargas, 878 F.2d at 1166. Therefore, the facts must be interpreted in the light of a trained officer's experience. Hernandez-Alvarado, 891 F.2d at 1416. Nonetheless, "[a] fourth amendment stop based on hunches alone will not withstand constitutional scrutiny." United States v. Kerr, 817 F.2d 1384, 1387 (9th Cir.1987) (citation omitted); see also Hernandez-Alvarado, 891 F.2d at 1416 (no reasonable suspicion despite nervous demeanor of vehicle's occupants, rapid reduction in speed, defendant's residence in neighborhood near border which was under investigation for narcotics activity, presence of two-way antenna, license frame indicating car purchased from dealership associated with drug trafficking, and vehicle's large capacity trunk); Robert L., 874 F.2d at 705 (no founded suspicion despite eye contact with border patrol agent, minimal deviation from normal driving, alleged but unproven tandem driving, large trunk on car, youthful appearance of driver, and knowledge of recent custom in area to use juveniles in transportation of drugs); United States v. Torres-Urena, 513 F.2d 540, 542 (9th Cir.1975) (no founded suspicion despite officer witnessing man loading boxes into pickup truck in driveway of house, officer's knowledge that female schoolteacher lived at house, early morning hour, and close proximity to the border).

Agent Welsh testified that he had a "gut reaction" Beltran-Delgado was involved in smuggling.1 However, Agent Welsh's hunch that Beltran-Delgado was engaged in criminal activity will not stand on its own as a basis for founded suspicion to make the stop of Beltran-Delgado's vehicle. See Kerr, 817 F.2d at 1387. Agent Welsh stated that his "gut reaction" was based on the late hour, the area, and the fact that the pickup truck disappeared from view between the time that Agent Welsh first spotted it and when he was able to turn his vehicle around to follow it. Agent Welsh also testified that recent intelligence indicated a smuggling ring was operating in the area using older pickup trucks without camper shells such as the one driven by Beltran-Delgado. These specific and articulable facts formed the basis for Agent Welsh's decision to detain Beltran-Delgado's vehicle.2

Although evasive driving is a factor which may properly form the basis for founded suspicion, see Brignoni-Ponce, 422 U.S. at 885, Agent Welsh's conclusion that Beltran-Delgado had attempted to evade him by turning off of Hollister and driving to the freeway through a residential area is unsupported by the facts. First, at the time that Agent Welsh spotted Beltran-Delgado for the second time and decided to stop him, there was no indication that Beltran-Delgado was heading towards the freeway at all. Second, Agent Welsh testified that he did not see Beltran-Delgado violate any traffic laws. Agent Welsh could not, therefore, rely on Beltran-Delgado's deviation from normal driving patterns as a basis for founded suspicion. See Robert L., 874 F.2d at 703-704 (significant that no traffic laws were violated by alleged evasive driving); cf. United States v. Medina-Gasca, 739 F.2d 1451, 1453 (9th Cir.1984) (vehicles driving in tandem dispersed immediately upon seeing border patrol agent, two of them making a U-turn).

The remaining factors upon which Agent Welsh founded his suspicion, when considered jointly, are insufficient to justify an investigatory stop. Even in combination, these factors describe "too many individuals to create a reasonable suspicion that this particular defendant [was] engaged in criminal activity." Hernandez-Alvarado, 891 F.2d at 1418-19.

Agent Welsh testified that he knew there was a smuggling ring operating in the area using older model pickup trucks such as the one driven by Beltran-Delgado. This was one of the factors which initially drew his attention to the vehicle. Agent Welsh also testified, however, that older model pickup trucks were common in a farming area such as the one where Beltran-Delgado's pickup was stopped. Therefore, without more, the fact that Beltran-Delgado was driving a pickup truck does not provide founded suspicion for his detention. See Robert L., 874 F.2d at 705. We have also previously rejected the argument that "proximity to the border converts ... otherwise innocuous activities into conduct suspicious enough to justify the stop." See Torres-Urena, 513 F.2d at 542-43. Here, as in Torres-Urena, there was no indication other than the officer's suspicions that any illegal activity was taking place. Finally, the fact that the hour was late when Beltran-Delgado was driving his older model pickup truck near the border does not convert this otherwise innocuous activity into one suspicious enough to justify an investigatory stop. Cf. United States v. Corral-Villavicencio, 753 F.2d 785, 790 (9th Cir.1985) (defendant was observed at 5:15 a.m. entering picnic area known to officers as one in which frequent contraband pickups were made, leaving picnic area after sufficient time elapsed to make contraband pickup, and officers had reason to suspect driver was not registered owner of vehicle); United States v. Rocha-Lopez, 527 F.2d 476, 479 (9th Cir.) (officers encountered defendant close to border in area notorious for smuggling, normal traffic for that time of day was light, agents knew almost all local residents and their vehicles, agents did not recognize defendant, and defendant came to unnecessary sudden stop at intersection and later braked suddenly upon seeing patrol car), cert. denied, 425 U.S. 977 (1976); United States v. Jaime-Barrios, 494 F.2d 455, 458 (9th Cir.) (officer intimately acquainted with area where defendants' vehicles were stopped, officer did not know defendants and did not recognize their vehicles, officer saw white powder around trunks of the vehicles he knew could be talcum powder used by smugglers to cover the smell of marijuana), cert. denied, 417 U.S. 972 (1974).

Therefore, we hold that under the facts of this case there was no founded suspicion to justify the detention of Beltran-Delgado's vehicle. See Hernandez-Alvarado, 891 F.2d at 1419; Robert L., 874 F.2d at 705; Kerr, 817 F.2d at 1387. Thus, Beltran-Delgado's conviction must be reversed and the case remanded for proceeding consistent with this disposition.

REVERSED AND REMANDED.