## Facts

- Border Patrol officers monitored a rural area near the Mexican border on Lyons Valley Road, with minimal legitimate late-night traffic and a reputation for alien smuggling and load sites.
- About two hours before the stop, a seismic intrusion sensor was triggered; based on experience, officers believed this matched the time it would take unlawful border crossers to reach the road.
- Officers observed two vehicles (a Dodge Durango and a Ford pickup) traveling very close together at a slow speed and repeatedly braking.
- The officers followed the vehicles, observed them turn around near a juvenile detention center, and saw the pickup later pull off and park on the roadside as the Durango passed.
- Agents stopped the vehicles, questioned occupants, and arrested David Berber-Tinoco (a passenger), later obtaining his statements and fingerprints.
- In district court, Berber-Tinoco moved to suppress his statements and fingerprints as fruits of an unlawful stop.
- During the suppression hearing, the judge interrupted and contradicted an officer’s testimony about local stop signs based on the judge’s personal knowledge and also referenced a road speed limit not established by testimony.

## Issues

1. Whether the investigatory stop by roving Border Patrol agents was supported by reasonable suspicion under the Fourth Amendment.
2. Whether the district judge violated Federal Rule of Evidence 605 by injecting personal knowledge into the suppression hearing, and if so, whether the error required reversal.

## Decision

- The Ninth Circuit affirmed the denial of the motion to suppress and the conviction.
- The court held that, considering the totality of the circumstances, officers had reasonable suspicion for the stop.
- The court held that the district judge violated Rule 605 by effectively acting as a witness, but the violation was harmless because reasonable suspicion was supported by record evidence independent of the judge’s extra-record statements.

## Legal Principles

- Reasonable suspicion for an investigatory stop is assessed under the totality of the circumstances and requires a particularized, objective basis for suspecting criminal activity.
- In roving Border Patrol contexts near the border, relevant reasonable-suspicion factors may include sensor activations, officer experience with smuggling routes and timing, characteristics of the area, and unusual coordinated driving behavior.
- Federal Rule of Evidence 605 prohibits the presiding judge from testifying; a judge violates the rule by supplying facts from personal knowledge or contradicting witnesses with extra-record information.
- A Rule 605 violation is subject to harmless-error review; reversal is not required if the challenged ruling is supported by admissible evidence and the error did not substantially influence the outcome.

## Conclusion

The court upheld a near-border vehicle stop based on sensor timing, officer experience, the rural smuggling corridor setting, and coordinated suspicious driving, and it declined to suppress derivative statements and fingerprints despite finding that the judge improperly injected personal knowledge at the suppression hearing because the error did not affect the result.


United States v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007)